Javier H. Perez v. Patricia Villarreal and Israel Villarreal

COURT OF APPEALS
CATHERINE STONE FOURTH COURT OF APPEALS DISTRICT KEITH E. HOTTLE
CHIEF JUSTICE CADENA-REEVES JUSTICE CENTER CLERK OF COURT
KAREN ANGELINI 300 DOLOROSA, SUITE 3200
SANDEE BRYAN MARION SAN ANTONIO, TEXAS 78205-3037
MARIALYN BARNARD WWW.4THCOA.COURTS.STATE.TX.US TELEPHONE
REBECA C. MARTINEZ (210) 335-2635
PATRICIA O. ALVAREZ
LUZ ELENA D. CHAPA FACSIMILE NO.
JUSTICES (210) 335-2762
February 4, 2014
Javier H. Perez, Sr. Marion Russell Lawler III
#31562-279 805 Media Luna Street, Ste. 620
FCI-Milan Brownsville, TX 78520-8145
P.O. Box 1000 * DELIVERED VIA E-MAIL *
Milan, MT 48160
RE: Court of Appeals Number: 04-13-00148-CV
Trial Court Case Number: 2011-CVT-000406-D2
Style: Javier H. Perez
v.
Patricia Villarreal and Israel Villarreal
Enclosed please find the order which the Honorable Court of Appeals has
issued in reference to the above styled and numbered cause.
If you should have any questions, please do not hesitate to contact me.
Very truly yours,
KEITH E. HOTTLE, CLERK
_____________________________
Elizabeth Montoya
Deputy Clerk, Ext. 53857
cc: Esther Degollado (DELIVERED VIA E-MAIL)
Vicente Mendoza (DELIVERED VIA E-MAIL)
Cynthia Perez Lenz (DELIVERED VIA E-MAIL)
Patricia Villarreal and Israel
Fourth Court of Appeals
San Antonio, Texas
February 4, 2014
No. 04-13-00148-CV
Javier H. PEREZ,
Appellant
v.
Patricia VILLARREAL and Israel Villarreal,
Appellees
From the 111th Judicial District Court, Webb County, Texas
Trial Court No. 2011-CVT-000406-D2
Honorable Monica Z. Notzon, Judge Presiding
ORDER
On August 9, 2013, in response to this court’s late brief notice, appellees filed a notice of
automatic stay. Attached to the notice was an order from the Texas Commissioner of Insurance
stating Driver’s Insurance Company, the insurance carrier defending appellees in this matter, is
insolvent and has been designated an impaired insurer under Chapter 462 of the Texas Insurance
Code. When the Texas Commissioner of Insurance issues an order designating an insurer as
impaired, an automatic stay is required by statute. See TEX. INS. CODE ANN. § 462.309 (West
2009). We therefore ordered the appeal abated and treated as a closed case until reinstated by
this court.
On December 17, 2013, appellant filed a letter in this court advising that the statutory
automatic stay had expired. Reviewing the applicable statute, it appears appellant is correct.
Section 462.309 of the Texas Insurance Code states when an automatic stay is instituted because
of the insolvency of an insurer, the matter is stayed for: “(1) a six-month period beginning on the
later of the date of the designation of impairment or the date an ancillary proceeding is brought
in this state; and (2) a subsequent period as determined by the court, if any.” Id. § 462.309(a)(1).
The designation of impairment was effective May 13, 2013. Therefore, in the absence of an
extension of the stay by a court, appellant is correct that the stay expired November 13, 2013.
Accordingly, on December 17, 2013, we ordered appellees to show cause in writing on or
before January 20, 2014, why the abatement previously ordered by this court should not be lifted
and this matter reinstated on the court’s active docket. We noted that at the time this matter was
abated, appellees’ brief was due. We advised that if appellees did not show cause as directed in
this order, this court will lift the abatement, reinstate the case on the court’s active docket, and
appellees’ brief would be due thirty days from the date of the reinstatement.
Appellees did not respond to our December 17, 2013 order. Accordingly, we ORDER
the abatement lifted and the appeal reinstated. We ORDER the clerk’s office of this court to
place the appeal back on the court’s active docket. We ORDER appellees to file their brief in
this court on or before March 6, 2014. Appellees are advised that if the brief is not timely filed
pursuant to this court’s order, the appeal will be set at issue and the case will be submitted
without an appellees’ brief.
We further order the clerk of this court to serve a copy of this order on all parties and all
counsel.
_________________________________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 4th day of February, 2014.
___________________________________
Keith E. Hottle
Clerk of Court