Xtreme Iron Holdings, LLC and Xtreme Iron, LLC v. Caterpillar Financial Services Corporation ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00438-CV
Xtreme Iron Holdings, LLC and § From the 393rd District Court
Xtreme Iron, LLC
§ of Denton County (2012-60121-393)
v.
§ December 6, 2012
Caterpillar Financial Services
Corporation § Per Curiam
JUDGMENT
This court has considered the record on appeal in this case and holds that
the appeal should be dismissed. It is ordered that the appeal is dismissed for
want of jurisdiction.
SECOND DISTRICT COURT OF APPEALS
PER CURIAM
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00438-CV
XTREME IRON HOLDINGS, LLC APPELLANTS
AND XTREME IRON, LLC
V.
CATERPILLAR FINANCIAL APPELLEE
SERVICES CORPORATION
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FROM THE 393RD DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION1
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The trial court signed a final judgment on June 8, 2012, against Appellants
Xtreme Iron Holdings, LLC and Xtreme Iron, LLC. Xtreme Iron Holdings, LLC
filed a bankruptcy case on June 13, 2012; Xtreme Iron, LLC filed a bankruptcy
case on July 11, 2012; and Appellants filed a motion for new trial on July 6, 2012.
The automatic stay as to the bankruptcy of Xtreme Iron Holdings, LLC was lifted
1
See Tex. R. App. P. 47.4.
2
on August 27, 2012, and the automatic stay as to the bankruptcy of Xtreme Iron,
LLC was lifted August 28, 2012. Appellants filed their notice of appeal on
October 24, 2012.
On November 1, 2012, we notified Appellants of our concern that the
notice of appeal was not timely filed, and we stated that the appeal could be
dismissed for want of jurisdiction unless Appellants or any party desiring to
continue the appeal filed with the court a response showing grounds for
continuing the appeal. Appellants filed a response claiming that the notice of
appeal as to Xtreme Iron Holdings, LLC was filed twenty-nine days before the
due date and that the notice of appeal as to Xtreme Iron, LLC was filed two days
before the due date. Appellants arrived at their calculations by tolling the
applicable appellate timetables during the period that the bankruptcy stays were
in effect.2 Appellants’ calculations are incorrect.
The automatic stay imposed by section 362 of the bankruptcy code does
not extend or toll any appellate deadlines by its own effect. See, e.g., Brashear
v. Victory Gardens of McKinney, L.L.C., 302 S.W.3d 542, 546 (Tex. App.—Dallas
2
According to Xtreme Iron Holdings, LLC, five days elapsed from the date
of the judgment until the filing of its bankruptcy, and fifty-six days elapsed from
the date of the order lifting the stay until the date on which the notice of appeal
was filed. Considering that the motion for new trial extended the deadline to file
the notice of appeal to ninety days from the date of the judgment, and if the
ninety-day period was tolled during the bankruptcy stay, then five and fifty-six
from ninety results in the notice of appeal being filed twenty-nine days before the
due date. Using the relevant dates as to Xtreme Iron, LLC, the same
methodology results in its notice of appeal being filed two days before the due
date.
3
2009, no pet.); C.J. Mach., Inc. v. Alamo Iron Works, No. 04-01-00258-CV, 2001
WL 1042251, at *1 (Tex. App.—San Antonio Sept. 2001, no pet.); Raley v. Lile,
861 S.W.2d 102, 105 (Tex. App—Waco 1993, writ denied). Instead, section
108(c) of the bankruptcy code provides that “if applicable nonbankruptcy law . . .
fixes a period for . . . continuing a civil action in a court other than a bankruptcy
court on a claim against the debtor, . . . and such period has not expired before
the date of the filing of the petition, then such period does not expire until the
later of” (1) the end of such period or (2) thirty days after notice of the termination
or expiration of the stay. 11 U.S.C.A. § 108(c) (West 2004 & Supp. 2012). Thus,
Extreme Iron Holdings, LLC’s notice of appeal was due by September 26, 2012,
and Extreme Iron, LLC’s notice of appeal was due by September 27, 2012—each
thirty days from the dates the automatic stays were lifted, which was later than
the expiration of ninety days from the date of the final judgment (September 6,
2012). See id. Because Appellants did not file a notice of appeal until October
24, 2012, we must dismiss this appeal for want of jurisdiction. See Tex. R. App.
P. 26.1(a)(1), 43.2(f).
PER CURIAM
PANEL: MEIER, J.; LIVINGSTON, C.J.; and GABRIEL, J.
DELIVERED: December 6, 2012
4