James C. Pettit, D.O. v. Jimmy and Carolyn Dowell, Individually and on Behalf of the Estate of Jonathan Lance Dowell ( 2005 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-01-00420-CV

James C. Pettit, D.O.,

                                                                      Appellant

 v.

Jimmy and Carolyn Dowell,

Individually and on behalf

of the Estate of Jonathan

Lance Dowell, Deceased,

                                                                      Appellee

From the 170th District Court

McLennan County, Texas

Trial Court # 99-2717-4

DISSENTING Opinion

          Now the abatement, if it was ever in place, is lifted.  The abatement was done after we learned that Dr. Pettit had filed for bankruptcy.  At the time of the abatement, we also purportedly withdrew the opinions we had issued.  We had issued the opinions before we learned of the bankruptcy; but before the opinions were purportedly withdrawn and after we learned of the bankruptcy, a motion for rehearing was filed.

          The automatic stay of the bankruptcy has been lifted.  Now we must decide how to proceed.  The majority purports to lift the stay, refuses to reinstate the prior opinions, and dismisses the motion for rehearing as moot.

          If we had the authority to withdraw the opinions and abate the appeal, this may all work out.  But if we had no authority to render these orders, once we learned of the automatic bankruptcy stay, then the opinions have not been withdrawn and the dismissal of the motion for rehearing commences the appellate timetable for filing a petition for review.

          And I am not sure what effect, if any, the Bankruptcy Court’s December 3, 2004 order terminating the automatic stay “effective July 29, 2004,” the date Dr. Pettit filed for bankruptcy, will have.  Hopefully, it will validate what the Court did if it otherwise would not have had that authority.

          But we could avoid this uncertainty if we simply:

1. Ordered reinstatement of the appeal;

2. Simultaneously reissued the opinions, majority and dissenting, as previously issued;

3. Simultaneously ruled on the motion for rehearing (Under my theory it is ripe for being ruled on because the withdrawal was ineffective.  Under the majority’s theory it would be ripe to rule on as relating to the newly issued opinions as a prematurely filed motion.); and

4. Simultaneously withdraw the opinions on our own motion.  (This would put the case in the procedural posture where the majority apparently wants it, though I do not understand why this is necessary.)

This process would bring procedural certainty to this case; a much needed certainty.  Because the Court leaves the parties in procedural limbo, by refusing to reissue opinions it was once satisfied with, I must dissent.

                                                          TOM GRAY

                                                          Chief Justice

Dissenting opinion delivered and filed February 23, 2005