Brashear v. Victoria Gardens of McKinney

• Decision Date: 16 December 2009
• Docket Number: No. 05-07-01269-CV.,05-07-01269-CV.
• Citation: 302 S.W.3d 542
• Parties: Paula BRASHEAR, Individually and as Executor of the Estate of Dorothy Lorene Williams, Deceased, Appellant v. VICTORIA GARDENS OF McKINNEY, L.L.C. d/b/a Homestead of McKinney and Lisa Mauer, Appellees.
• Court: Texas Court of Appeals

302 S.W.3d 542

Paula BRASHEAR, Individually and as Executor of the Estate of Dorothy Lorene Williams, Deceased, Appellant v. VICTORIA GARDENS OF McKINNEY, L.L.C. d/b/a Homestead of McKinney and Lisa Mauer, Appellees.

No. 05-07-01269-CV.

Court of Appeals of Texas, Dallas.

December 16, 2009.

Thomas B. Cowart, Dallas, TX, for Appellant.

Deanna Dean Smith, Marvin C. Moos, Ebanks, Smith & Carlson, L.L.P., Houston, TX, Thomas B. Alleman, Winstead, Sechrest & Minick, P.C., Dallas, TX, for Appellees.

Before Justices MOSELEY, FITZGERALD, and FILLMORE.¹

OPINION ON REHEARING

Opinion By Justice FILLMORE.

Appellant Paula Brashear filed a motion for rehearing. We overrule the motion for rehearing. On our own motion, we withdraw our opinion issued February 10, 2009 and vacate our judgment of that date. The following is now the opinion of the Court.

Brashear sued several defendants for damages based on allegations that they neglected her mother, a nursing home resident. At that time, one of the defendants was a debtor in bankruptcy. The trial court later dismissed the case for want of prosecution. We conclude that the entire lawsuit was subject to the automatic stay imposed by § 362 of the bankruptcy code ab initio, and that the trial court never acquired jurisdiction over the case. We reverse and remand with instructions that the trial court dismiss the case for lack of subject-matter jurisdiction.

I. PROCEDURAL HISTORY

Appellant Brashear filed this lawsuit in February 2001. She sued five defendants appellees Victoria Gardens of McKinney, L.L.C. and Lisa Mauer, plus RainTree Healthcare Corporation, Stephen J. Wolf, and Eddie Haggard. RainTree promptly filed a suggestion of bankruptcy and plea in abatement, along with attached documentation showing that it had filed its bankruptcy case under Chapter 11 of the bankruptcy code² in February 2000. RainTree later filed an additional motion with the trial court seeking enforcement of the automatic bankruptcy stay imposed by § 362 of the bankruptcy code. See generally 11 U.S.C.A. § 362 (West 2004 & Supp. 2009). In July 2002, the trial court dismissed the case for want of prosecution. Brashear moved to reinstate, and she submitted an "Agreed Order to Stay Litigation" with her motion. The order was signed "Agreed as to Form" by counsel for all parties. The trial judge signed both the agreed stay order and a separate order reinstating and staying the case. In both orders, the judge stayed the case "pursuant to 11 U.S.C. § 362 until further order of this Court."

In September 2004, the trial court sent a notice that the case would be dismissed for want of prosecution absent certain action from the parties, and the court dismissed the case for want of prosecution on October 27, 2004. The trial judge then signed an "Agreed Order of Dismissal with Prejudice as to Defendant RainTree Only" on January 20, 2005. The clerk's record reflects no activity between these two dismissal orders.

Brashear filed a verified motion to reinstate the case on February 2, 2006. It appears that the motion was heard but never ruled upon by written order. The record contains uncontradicted evidence that RainTree's bankruptcy closed on August 17, 2007. On September 15, 2007, Brashear filed by mail both a duplicate of her 2006 motion to reinstate and a notice of appeal from the October 2004 dismissal for want of prosecution. The trial court denied the motion to reinstate by order signed on November 20, 2007.

On appeal, Brashear complains of the October 27, 2004 dismissal order only as to defendants Victoria Gardens and Lisa Mauer.

II. APPELLATE JURISDICTION

A. Summary of the issue

The trial court's dismissal order of October 27, 2004 purported to dispose of all parties and claims. Accordingly, that order was, on its face, a final, appealable order, and Brashear's September 15, 2007 notice of appeal appears to be untimely. See generally TEX.R.APP. P. 26.1 (setting forth deadlines for appeal in civil cases). Because a timely notice of appeal is a jurisdictional prerequisite, Raulston v. Progressive Ins. Co., 115 S.W.3d 803, 804 (Tex.App.-Dallas 2003, no pet.) (per curiam), we questioned our jurisdiction over this appeal and solicited letter briefs from the parties directed to that issue. The parties filed letter briefs, and Brashear also addresses this Court's jurisdiction in the third of her three issues on appeal.

Brashear argues that federal bankruptcy law, specifically 11 U.S.C. § 108(c), tolled her deadline to appeal until at least thirty days after August 17, 2007, when RainTree's bankruptcy closed. See 11 U.S.C.A. § 108(c) (West 2004 & Supp. 2009). Thus, she contends, her September 15, 2007 notice of appeal was timely. Alternatively, she contends that the October 2004 dismissal order was void and that we have jurisdiction to determine that it is void. Appellees disagree with Brashear and Mauer has included a motion to dismiss this appeal in her appellate brief.

Appellate jurisdiction is never presumed. Unless the record affirmatively shows the propriety of appellate jurisdiction, we must dismiss. Stegall v. Cameron, 601 S.W.2d 771, 773 (Tex.Civ.App.-Dallas 1980, writ dism'd); accord Parks v. DeWitt County Elec. Coop., Inc., 112 S.W.3d 157, 160 (Tex.App.-Corpus Christi 2003, no pet.).

B. Judgment finality

The first question we must answer is when the judgment in this case became final, triggering Brashear's appellate deadlines. Ordinarily a judgment is final for appellate-deadline purposes when it disposes of all claims and all parties left in the lawsuit. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex.2001). On its face, the trial court's October 27, 2004 dismissal order disposed of all claims and all parties by dismissing the case for want of prosecution. Unless some other principle of law modifies our usual rules of judgment finality, the dismissal order was a final judgment that triggered Brashear's appellate deadlines, and Brashear's September 2007 notice of appeal was filed too late.

Brashear mounts an argument that the October 27, 2004 dismissal order was interlocutory because it was rendered in violation of the automatic bankruptcy stay. Brashear contends that the automatic stay applied as to all of her claims against all defendants, but secondarily she argues that the stay applied at minimum to her claims against the bankrupt debtor, RainTree. Actions taken in violation of the automatic stay are void. Cont'l Casing Corp. v. Samedan Oil Corp., 751 S.W.2d 499, 501 (Tex.1988) (per curiam); Stephens v. Hemyari, 216 S.W.3d 526, 529 (Tex. App.-Dallas 2007, pet. denied). Thus, she concludes, the order was interlocutory because it did not validly dispose of all of her claims. The dismissal remained interlocutory, in her view, until RainTree's bankruptcy closed in August 2007, thus making her appeal timely. We cannot agree with this logic, whereby the finality of an order depends on its validity. "Even void orders must be timely appealed." Standifer v. Cepeda, No. 05-05-00725-CV, 2005 WL 2212291, at *1 (Tex.App.-Dallas Sept. 13, 2005, no pet.) (mem. op.); accord In re Estate of Courvier, No. 04-07-00469-CV, 2007 WL 2935809, at *1 (Tex.App.-San Antonio Oct. 10, 2007, no pet.) (mem. op.); see also Kenseth v. Dallas County, 126 S.W.3d 584, 596-97 (Tex.App.-Dallas 2004, pet. denied).

We conclude that the October 27, 2004 dismissal order was a final judgment, and that the order started Brashear's appellate timetable under our state rules of procedure. We next inquire whether federal bankruptcy law supersedes that state law on the facts of this case.

C. Whether the bankruptcy code extended Brashear's appellate deadline

1. Applicable law

The automatic stay imposed by § 362 of the bankruptcy code does not extend or toll any appellate deadlines by its own effect. See, e.g., Bashaw v. State, No. 03-05-00745-CV, 2007 WL 1518063, at *2 (Tex.App.-Austin May 25, 2007, no pet.) (mem. op.); Burrhus v. M & S Mach. & Supply Co., 897 S.W.2d 871, 873 (Tex.App.-San Antonio 1995, no writ); Raley v. Lile, 861 S.W.2d 102, 105 (Tex.App.-Waco 1993, writ denied). Yet, it bars the filing of a notice of appeal in an action against a debtor in bankruptcy because that would constitute a continuation of the action. See 11 U.S.C.A. § 362(a)(1) (West 2004 & Supp.2009); Bunch v. Hoffinger Indus., Inc. (In re Hoffinger Indus., Inc.), 329 F.3d 948, 953 (8th Cir.2003) ("[T]he filing of the notice of appeal in state court is one aspect of a continuation of a judicial `proceeding against a debtor,' and thus stayed by § 362(a)(1)[.]").

Section 108(c) of the bankruptcy code, however, affords an extension of state-court deadlines under some circumstances. That section provides, in pertinent part:

[I]f applicable nonbankruptcy law ... fixes a period for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor ... and such period has not expired before the date of the filing of the [bankruptcy] petition, then such period does not expire until the later of—

(1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or

(2) 30 days after notice of the termination or expiration of the stay under section 362, 922, 1201, or 1301 of this title, as the case may be, with respect to such claim.

11 U.S.C.A. § 108(c). The purpose of § 108(c) is to protect a creditor from losing rights because an automatic bankruptcy stay blocks it from commencing suit against the debtor within the statute of limitations or from complying with some other deadline after suit has been commenced. See Morton v. Nat'l Bank (In re Morton), 866 F.2d 561, 566-67 (2d Cir. 1989). When applicable, § 108(c) extends certain deadlines for thirty days after notice of the termination of a bankruptcy stay. Gantt v. Gantt, 208 S.W.3d 27, 30-31 (Tex.App.-Houston [14th Dist.] 2006, pet. denied).

2. Application of the bankruptcy code to the facts

The...