DocketNumber： 10-06-00094-CV
Filed Date： 4/12/2006
Status： Precedential
Modified Date： 9/10/2015
IN THE
TENTH COURT OF APPEALS
No. 10-06-00089-CV
No. 10-06-00094-CV
John and Mickey Margetis,
Appellants
v.
Ronald and Donna Neystel,
Appellees
From the County Court at Law
Ellis County, Texas
Trial Court No. 05-C-3554
SEVERANCE AND REINSTATEMENT ORDER
The trial court signed a default judgment against Appellants John and Mickey Margetis jointly and severally on October 6, 2005. The Margetises advised the trial court in a pro se motion for new trial filed on October 28 and in an amended motion for new trial filed by counsel on November 4 that Mickey Margetis was “in federal bankruptcy.” After a hearing, the court denied the Margetises’ amended motion for new trial by order signed December 17. Mickey Margetis filed a suggestion of bankruptcy with the trial court on December 30, advising that she had filed a voluntary bankruptcy petition nearly six months earlier on July 1, 2005. Nevertheless, Appellants John and Mickey Margetis filed a notice of appeal on January 17, 2006.
These proceedings have been suspended because of the automatic bankruptcy stay. See 11 U.S.C.A. § 362(a) (West 2004); Tex. R. App. P. 8.2. However, the stay is effective only as to Mickey Margetis, and John Margetis cannot benefit from the stay. See In re Sw. Bell Tel. Co., 35 S.W.3d 602, 604 (Tex. 2000); Ma-Stell, Inc. v. Anadarko E & P Co., No. 10-03-00358-CV, 2005 Tex. App. LEXIS 3193, at *2 (Tex. App.—Waco Apr. 27, 2005, order); Lisanti v. Dixon, 147 S.W.3d 638, 641-42 (Tex. App.—Dallas 2004, pet. denied).
Accordingly, we sever John Margetis’s appeal from Mickey Margetis’s appeal. See Tex. R. App. P. 8.3(b); Ma-Stell, 2005 Tex. App. LEXIS 3193, at *2. The Clerk of this Court shall docket Mickey Margetis’s appeal under cause number 10-06-00094-CV, styled Mickey Margetis v. Ronald and Donna Neystel. The Clerk shall note in the severed cause that the Clerk’s and Reporter’s Records in this cause shall serve as the Clerk’s and Reporter’s Records in the severed cause. See Ma-Stell, 2005 Tex. App. LEXIS 3193, at *2-3.
This appeal is reinstated, and the Clerk of this Court shall re-style this appeal as John Margetis v. Ronald and Donna Neystel. See Tex. R. App. P. 8.3(b); Ma-Stell, 2005 Tex. App. LEXIS 3193, at *3.
Any time period allowed for action under the appellate rules that had begun to run and had not expired when this proceeding was suspended begins anew on the date of this order. See Tex. R. App. P. 8.2; Ma-Stell, 2005 Tex. App. LEXIS 3193, at *3.
The clerk’s record has been received and will be filed in this appeal on the date of this order. The trial court’s docket sheet indicates that a record was made at the default judgment hearing. Accordingly, the reporter’s record is due on or before July 19, 2006.[1]
PER CURIAM
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray dissents without a separate opinion)
Order issued and filed April 12, 2006
[CV06]
[1] We treat the bankruptcy stay as having taken effect on October 28, 2005 when the Margetises first notified the trial court that a bankruptcy proceeding was pending. This was 22 days after the court signed the default judgment. Because the Margetises filed a motion for new trial, the court reporter has 120 days after judgment to file the reporter’s record. See Tex. R. App. P. 35.1(a). Accordingly, we conclude that the court reporter still has 98 days to file the record. Id. 8.2; Ma-Stell, Inc. v. Anadarko E & P Co., No. 10-03-358-CV, 2005 Tex. App. LEXIS 3193, at *3 (Tex. App.—Waco Apr. 27, 2005, order).