Paula Miller v. James Prince A/K/A James Smith ( 2014 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
MEMORANDUM ORDER
Appellate case name: Paula Miller v. James Prince a.k.a James Smith
Appellate case number: 01-13-00243-CV
Trial court case number: 2011-65843
Trial court: 309th District Court of Harris County
The complete record was filed in the above-referenced appeal on June 4, 2013, making
appellant’s brief due on July 5, 2013. See TEX. R. APP. P. 38.6(a). On April 2, 2014, we notified
appellant that the time for filing her brief had expired and that, unless her brief or a satisfactory
motion for extension of time is filed by May 2, 2014, we may dismiss the appeal for want of
prosecution. In response, on April 3, 2014, appellant filed a suggestion of bankruptcy stating that
her bankruptcy petition was reinstated on March 28, 2014. Appellant requests that “this Court
take notice of this bankruptcy filing and the provisions of the automatic stay of 11 U.S.C. § 362.”
Appellant’s suggestion of bankruptcy fails to demonstrate that this appeal is stayed by her
bankruptcy. Appellant was the petitioner who initiated the underlying divorce proceeding. Thus,
the automatic stay imposed by Section 362 of the Bankruptcy Code does not apply because it
stays actions against a debtor, whereas this appeal relates to an action by the debtor. See 11
U.S.C. § 362(a)(1) (bankruptcy petition imposes an automatic stay of “the commencement or
continuation . . . of a judicial, administrative, or other action or proceeding against the debtor
that was or could have been commenced before the commencement of the case under this title, or
to recover a claim against a debtor that arose before the commencement of the case under this
title”) (emphasis added). As this Court has held with respect to the Section 362 automatic stay:
Because an appeal is a continuation of judicial action, it is automatically stayed if
it is “against the debtor.” Generally, if the debtor was the plaintiff in the court
below, the stay does not apply; if the debtor was the defendant . . . any further
action is stayed.
Budzyn v. Citibank (South Dakota), N.A., No. 01-08-00211-CV, 2010 WL 2044628, at *1 (Tex.
App.—Houston [1st Dist.] May 19, 2010, no pet.) (citations omitted); see also Greenberg v.
Fincher & Son Real Estate, Inc., 753 S.W.2d 506, 506-07 (Tex. App.—Houston [1 Dist.]1988,
no pet.) (same); Three Legged Monkey, L.P. v. Cook, 417 S.W.3d 541, 543 (Tex. App.—El Paso
2013, petition for review filed) (Section 362(a)(1)’s providing that it operates as a stay
“’[a]gainst the debtor’ means that Congress intended only to stay suits filed against bankruptcy
debtors, not suits filed by bankruptcy debtors.”); Montgomery Ward & Co., Inc. v. Denton
County Appraisal Dist., 13 S.W.3d 828, 829-830 (Tex. App.—Fort Worth 2000, pet. denied)
(holding that automatic stay did not prohibit trial court from dismissing appellant’s case for want
of prosecution because “[a]ppellant initiated the suit, which is not an ‘action or proceeding
against the debtor.’”).
To the extent that Texas Rule of Appellate Procedure 8.2 provides for a stay upon filing a
bankruptcy petition regardless of whether the action is by or against the debtor (and, thus,
broader than the stay imposed by Section 362 of the Bankruptcy Code), Rule 8.3 allows us to
reinstate the appeal. See TEX. R. APP. P. 8.3(a) (“If a case has been suspended by a bankruptcy
filing, a party may move that the appellate court reinstate the appeal if permitted by federal law
or the bankruptcy court.”). Here, federal law permits reinstating the appeal because the Section
362 automatic stay does not apply and no other federal law prevents continuing the appeal.
Accordingly, we hold that this appeal is not stayed by appellant’s bankruptcy. Appellant
is ordered to file her brief, or a response demonstrating that this appeal is subject to the
bankruptcy stay, within 30 days from the date of this order. If appellant fails to timely comply,
the Court may dismiss this appeal for want of prosecution without further notice. See TEX. R.
APP. P. 42.3(b).
It is so ORDERED.
Judge’s signature: /s/ Jane Bland
 Acting individually  Acting for the Court
Date: April 22, 2014