Opinion
NO. 14-16-00155-CV
05-03-2016
ALEJANDRO KISS, INDIVIDUALLY AND AS TRUSTEE OF THE ALEJANDRO KISS AND MARY KATHRYN KISS REVOCABLE LIVING TRUST, Appellant v. DONALD ATENCIO, WELLHEAD SERVICES, INC., FRACMASTER, LLC AND JK RED DIRT RENTALS, INC., Appellee
On Appeal from the 113th District Court Harris County, Texas
Trial Court Cause No. 2014-64371
ABATEMENT ORDER
On March 11, 2016, appellants filed a motion for voluntary dismissal of this appeal. See Tex. R. App. P. 42.1. Their motion stated that a bankruptcy petition was filed by Petroleum Products & Services, Inc. d/b/a Wellhead Distributors Int'l, a cross-defendant in the underlying proceeding that is not a party to this appeal, in the U.S. Bankruptcy Court for the Southern District of Texas under cause number 16- 31201. The motion also stated that on March 9, 2016, the underlying proceeding was removed to the bankruptcy court and docketed in the bankruptcy proceeding as adversary proceeding number 16-03053.
Once a state case is removed, the state court "shall proceed no further unless and until the case is remanded." 28 U.S.C. § 1446(d). Therefore, section 1446(d) prohibits this court from dismissing this appeal. See EOG Resources, Inc. v. Gutierrez Vela, No. 04-02-00168-CV, 2003 WL 21918590 (Tex. App.—San Antonio Aug. 13, 2003) (per curiam) (mem. op.) (holding that where underlying case had been removed, appeal must be abated and could not be dismissed until federal court dismissed or remanded the case).
Accordingly, the appeal is ABATED and treated as a closed case until further order of this court. Any party may file a motion to reinstate the appeal upon the bankruptcy court's dismissal or remand of the removed action.
Appellants' motion to dismiss will be carried with the case.
PER CURIAM