Michael Nagata, Jack Van Vleit and James (Patt) Edgar v. MHWIRTH Inc.

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Gulf Coast Brake & Motor, Inc., Michael Nagata, Jack Van
Vleit and James (Pat) Edgar v. MHWirth, Inc.
Appellate case number: 01-21-00492-CV
Trial court case number: 2021-14261
Trial court: 157th District Court of Harris County
Appellants, Gulf Coast Brake & Motor, Inc., Michael Nagata, Jack Van Vleit, and
James (Pat) Edgar filed this interlocutory appeal challenging the trial court’s denial of the
appellants’ motions to abate the underlying trial court proceeding and denial of Nagata’s
and Edgar’s special appearances. On December 6, 2021, appellants jointly filed an
appellants’ brief. On January 26, 2022, appellee MHWirth, Inc. filed its appellee’s brief.
On July 15, 2022, appellant Gulf Coast Brake & Motor, Inc. (“Gulf Coast”) filed a
“Suggestion of Bankruptcy and Notice of Automatic Stay,” notifying this Court that on
July 14, 2022, Gulf Coast filed a bankruptcy case under Chapter 11 of the United States
Bankruptcy Code in the United States District Court for the Western District of Louisiana,
Lafayette Division. On July 26, 2022, the Court abated this appeal pending resolution of
Gulf Coast’s bankruptcy proceedings. See TEX. R. APP. P. 8.2.
Generally, a bankruptcy “stay only operates against the debtor, and does not operate
against non-debtors or even co-debtors, co-tortfeasors, or co-defendants.” See In re Sw.
Bell Tel. Co., 35 S.W.3d 602, 604 (Tex. 2000); see also Chahedeh v. Jacinto Med. Grp.,
P.A., 519 S.W.3d 242, 247–48 (Tex. App.—Houston [1st Dist.] 2017) (concluding that
claims against non-bankrupt guarantor may proceed where claims against debtor were
subject to automatic stay). To this end, Texas Rule of Appellate Procedure 8.3, titled
“Motion to Reinstate or Sever Appeal Suspended by Bankruptcy,” allows a party to “move
to sever [an] appeal with respect to the bankrupt party and to reinstate the appeal with
respect” to any non-bankrupt parties. See TEX. R. APP. P. 8.3(b). On August 9, 2022,
appellee filed a “Motion to Sever and Reinstate Appeal.” In its motion, appellee argues
that severance and reinstatement is appropriate as to appellants Nagata, Van Vleit, and
Edgar, because they have not filed for bankruptcy protection, and appellees claims against
them in the underlying trial court proceeding “are severable from those against Gulf
Coast.” See TEX. R. APP. P. 8.3(b).
Appellee’s motion incudes a certificate of conference stating that appellee attempted
to confer with counsel for appellants, but that at the time the motion was filed, counsel for
appellants had “not stated whether [a]ppellants [were] opposed” to the relief requested in
the motion. See TEX. R. APP. P. 10.1(a)(5). However, more than ten days have passed and
appellants have not filed a response to appellee’s motion. See TEX. R. APP. P. 10.3(a).
Appellee’s motion to reinstate and sever appellant Gulf Coast Brake & Motor, Inc.
is granted. We lift the stay imposed by our July 26, 2022 order and reinstate the case on
the Court’s active docket. The Clerk of this Court is directed to re-style this appeal as
Michael Nagata, Jack Van Vleit, and James (Pat) Edgar v. MHWirth, Inc. Because
briefing was completed in this appellate case number prior to the bankruptcy stay, the Clerk
of this Court is further directed to set this case “at-issue.” The parties will be notified when
the case is submitted for consideration by the Court.
The Clerk of this Court is further directed to create a new appellate case number, to
be styled Gulf Coast Brake & Motor, Inc. v. MHWirth, Inc., and shall note in the severed
case number that the clerk’s record and reporter’s record filed in case number
01-21-00492-CV shall serve as the clerk’s record and reporter’s record in the newly created
severed case number. The newly created severed case number is abated pursuant to the
July 15, 2022, “Suggestion of Bankruptcy and Notice of Automatic Stay,” filed by Gulf
Coast.
It is so ORDERED.
Judge’s signature: ______/s/ Amparo Guerra______
 Acting individually  Acting for the Court
Date: ___September 8, 2022____
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