MCI Sales and Service, Inc. v. James Hinton, Individually and as Representative of the Estate of Dolores Hinton ( 2009 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-08-00353-CV

MCI Sales and Service, Inc.,

                                                                                      Appellant

v.

James Hinton, Individually and as

Representative of the Estate of Dolores

Hinton, Deceased, david hinton, obert

kuryla, karen kuryla, hattie binns, reta

haynes, melinda greger, alan horton,

elaine horton, ruth powell, judy benson,

james l. freeman, individually and as personal

representative of the estate of jo catherine

freeman, deceased, james f. freeman, melanie 

jo brooks, susan akers bills, individually and

as executrix of the estates of robert melvin

akers, deceased, and mildreD delois akers,

deceased, robert melvin akers, jr., patsy beasley, individually and as executrix of the estate of

wayne beasley, deceased, shirley sommer,

and peggy armstrong,

                                                                                    Appellees

From the 170th District Court

McLennan County, Texas

Trial Court No. 2003-2308-4

ORDER REINSTATING APPEAL

            MCI Sales and Service, Inc. together with Motor Coach Industries Mexico, S.A. de C.V., appealed from a judgment against them in the 170th District Court in McLennan County.  That appeal was assigned case number 10-06-00256-CV.  In an opinion issued on September 10, 2008, this Court reversed the trial court’s judgment and remanded the case to the trial court for further proceedings.  MCI Sales & Serv. v. Hinton, 272 S.W.3d 17 (Tex. App.—Waco 2008, pet. filed).  On September 15, 2008, MCI and several related entities filed for bankruptcy.  A notice of bankruptcy was filed in this Court on September 19, 2008, resulting in an automatic stay of the appeal.  See Tex. R. App. P. 8.2; 11 U.S.C. § 362. 

            On October 15, 2008, this Court, on its own motion, severed MCI’s appeal and assigned it case number 10-08-00353-CV.  MCI Sales & Serv. v. Hinton, 272 S.W.3d 44 (Tex. App.—Waco 2008, order).  At the same time, the Court reinstated the appeal by Motor Coach Industries Mexico.  The Court later issued a Memorandum Opinion announcing that MCI’s appeal would be treated as closed unless reinstated on proper motion “showing that the stay has been lifted or modified and specifying what action, if any, is required from this Court upon reinstatement of the appeal.”  MCI Sales & Serv. v. Hinton, No. 10-08-00353-CV, 2008 Tex. App. LEXIS 8200 (Tex. App.—Waco Oct. 29, 2008, no pet.).

            MCI’s motion to reinstate was filed by this Court on May 5, 2009.  MCI stated in its motion that the United States Bankruptcy Court for the District of Delaware issued an order on April 17, 2009 modifying and confirming the reorganization plan of Motor Coach Industries International, Inc. and its affiliated debtors, including MCI.  According to Section 12.9 of the plan, the automatic stay under 11 U.S.C. § 362 remained in effect until the effective date of the plan.  On April 20, 2009, the debtors filed a notice in the bankruptcy proceeding establishing the plan’s effective date as April 17, 2009.  Thus, the automatic stay was terminated on April 17.

            Because the automatic stay has been terminated, MCI’s motion to reinstate is granted.  Accordingly, this appeal is reinstated.  All time periods that had not expired by the date of the automatic stay, September 15, 2008, begin anew and are measured from the date of this order reinstating the appeal. ^[1]

                                                                        PER CURIAM

Before Chief Justice Gray, and

            Justice Reyna

Appeal reinstated

Order issued and filed May 20, 2009

[CV06]

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[1] Justice Vance, a designated member of the panel assigned to this appeal did not participate in deciding this motion.  He retired as of December 31, 2008.  Justice Davis did not participate in deciding this motion because he recused himself from participation by an order signed on May 8, 2009.  We have determined that the assignment of a third judge to participate in deciding the motion is unnecessary.  See Tex. R. App. P. 10.4 and 41.1.