Dawn Gayken, D.D.S. v. Ann D. Ewton, Individually and as Independent of the Estate of Merle Clement Ewton, D.D.S.

PLUMMER V REEVES NO. 07-06-0379-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

OCTOBER 25, 2007 ______________________________

DAWN GAYKEN, D.D.S.,

Appellant

V.

ANN D. EWTON, Individually and as Independent Executrix of the Estate of MERLE CLEMENT EWTON, D.D.S., Deceased

Appellees

_________________________________

FROM THE 284th DISTRICT COURT OF MONTGOMERY COUNTY;

NO. 01-02-00972-CV; HON. JOHN M. DELANEY, PRESIDING _______________________________

ORDER OF ABATEMENT _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Dawn Gayken, D.D.S. (appellant) appeals the trial court's order granting a bill of review to appellee. This court has received notice from appellant's counsel that appellant has filed a voluntary petition as debtor under the United States Bankruptcy Code. Said notice included a faxed file-marked document from the United States Bankruptcy Court, Southern District of Texas, Houston Division. Pursuant to 11 U.S.C. § 362, any further action in this appeal is automatically stayed.

Under these circumstances, and for administrative purposes, this appeal is removed from the docket of this court and abated. The appeal will be reinstated upon proper motion showing that the stay has been lifted or that the court may otherwise proceed with the disposition of the cause.

Accordingly, the appeal is abated.

Per Curiam

nder the factual sufficiency standard. The appeals panel denied appellee's claim in December 2001.

Appellee filed her original petition in district court in January 2002. Both parties filed motions for summary judgment in March 2003. Appellant's motion was a no-evidence motion pursuant to Rule of Civil Procedure 166a(i) asserting there was no evidence of a causal connection between appellee's conditions and her employment. Appellee's motion asserted the court was limited to performing a substantial evidence review of the administrative record from the appeals panel proceeding. The trial court denied appellant's motion, granted appellee's motion, and rendered final summary judgment for her on April 22, 2003.

Appellant filed a motion for new trial May 27, 2003, ⁽¹⁾ arguing appellee failed to establish her claim and the trial court erred in denying its motion for summary judgment. The parties' brief asserts appellant first challenged the court's use of the substantial evidence standard at a June 18 hearing on its motion for new trial. In response to a request for additional briefing on the issue, appellee's counsel sent a letter dated June 24, 2003 conceding the court applied the wrong standard and stating an expectation the court would grant appellant's motion for new trial. ⁽²⁾

No order granting new trial was signed and appellant perfected this appeal. Our review of the record convinces us reversal is required.

It is undisputed the core issue of this litigation is the compensability of appellee's injuries. In Texas Workers' Compensation Commission v. Garcia, 893 S.W.2d 504 (Tex. 1995), the court held trial of such issues is governed by Section 410.301 of the Labor Code. 893 S.W.2d at 528. Finding the holding in Garcia dispositive, we reverse the judgment of the trial court and remand to that court for further proceedings consistent with this opinion.

James T. Campbell

Justice

1. This motion was timely because it was mailed on May 22, 2003 and received within 10 days. See Tex. R. Civ. P. 5; 329b(a).

2. This letter is not a part of the record in this appeal but a copy has been attached to the parties' brief.