Opinion
Nos. 10-08-00329-CV, 10-08-00354-CV.
October 15, 2008.
Appeal from the 361st District Court, Brazos County, Texas, Trial Court No. 03-001642-CV-361, Consolidated with No. 03-001643-CV-361, Harold Robert Towslee, Judge.
Randy Michel, Law Offices of Randy Michel, College Station, for appellants.
J. Davis Watson, Payne Watson Miller Malechek Scherr, Bryan, for appellee.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
SEVERANCE AND REINSTATEMENT ORDER
Appellants Margaret Meece and Patrick Meece have filed a Suggestion of Bankruptcy advising this Court that they filed a voluntary bankruptcy petition on September 3, 2008. Accordingly, this appeal has been suspended because of the automatic bankruptcy stay. See TEX.R.APP. P. 8.2; 11 U.S.C.A. § 362(a). However, the stay is effective only as to Appellants Margaret Meece and Patrick Meece, and the remaining appellant, Margaret Hiebeler, cannot benefit from the stay. See In re Sw. Bell Tel Co., 35 S.W.3d 602, 604 (Tex. 2000); Ma-Stell, Inc. v. Anadarko E P Co., No. 10-03-358-CV, 2005 WL 984785, at *1 (Tex.App.-Waco Apr. 27, 2005, order); Lisanti v. Dixon, 147 S.W.3d 638, 641-42 (Tex.App.-Dallas 2004, pet. denied), cert. denied, 549 U.S. 818, 127 S.Ct. 83, 166 L.Ed.2d 30 (2006).
The appellants in this cause are Margaret Meece, Patrick Meece, and Margaret Hiebeler.
Accordingly, we sever the appeals of Margaret Meece and Patrick Meece from the remainder of the appeal. See TEX. R.APP. P. 8.3(b); Ma-Stell, 2005 WL 984785, at *1. The Clerk of this Court shall docket the appeal of Margaret Meece and Patrick Meece under cause number 10-08-00354-CV, styled Margaret Meece and Patrick Meece v. OCC Construction Corporation.
This appeal is reinstated, and the Clerk of this Court shall re-style this appeal as Margaret Hiebeler v. OCC Construction Corporation. See Ma-Stell, 2005 WL 984785, at *1.
Any time period allowed for action under the appellate rules that had begun to run and had not expired when this proceeding was suspended begins anew on the date of this order. See TEX.R.APP. P. 8.2; Ma-Stell, 2005 WL 984785, at *1.
Chief Justice GRAY dissenting.
The Court's opinion and judgment in 10-08-00329-CV has not issued. On September 18, 2008 we received a notice of bankruptcy of two of the Appellants. On October 7, 2008 we acknowledged the automatic stay due to having received the notice of bankruptcy. Today we purport to sever the proceeding on our own motion. I would not.
I would inquire of the parties regarding whether the matter was appropriate for severance, in particular whether the Appellees' claims against the Appellants as well as the Appellants' claims and counter-claims are severable. Before I vote to attempt to sever the Appellants, I would request briefing on the issue of severability. Further, it appears we may be creating an undesirable course of proceeding because, while represented by able counsel, none of the parties has sought this Court's intervention in this manner.
Accordingly, I respectfully dissent from the severance and reinstatement order.