Order issued February 26, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-10-00519-CV
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OKON EYO ONYUNG, M.D., THE LAW OFFICES OF YUEN &
ASSOCIATES, P.C., THE LAW OFFICES OF YUEN & ASSOCIATES,
PLLC, AND XENOS YUEN, Appellants
V.
COMFORT NKASI ONYUNG, CHRISTINE ENEBONG ONYUNG,
NNAEMEKA ODUNZE, INDIVIDUALLY AND AS TRUSTEE OF THE
ONYUNG LIVING TRUST, ODUNZE & LAZ, L.L.P., AND VICTOR
IHEZUKWU, Appellees
On Appeal from the 434th District Court
Fort Bend County, Texas
Trial Court Case No. 04-CV-140141
ORDER ON CONTINUING ABATEMENT
On January 31, 2013, this court issued an opinion and judgment in this case.
On February 21, 2013, appellant Xenos Yuen informed the court that he had filed a
bankruptcy petition under Chapter 13 of the United States Bankruptcy Code on
January 21, 2013, ten days before the issuance of the court’s opinion.*
Section 362(a) of the United States Bankruptcy Code provides that once a
petition in bankruptcy is filed, it operates as an automatic stay against the
commencement or continuation of any judicial, administrative, or other proceeding
against the debtor. 11 U.S.C. §362(a). Any actions taken in violation of the
automatic stay, including judgments or other court actions, are void. Kalb v.
Feuerstein, 308 U.S. 433, 440, 60 S. Ct. 343, 346–47 (1940); York v. State, 373
S.W.3d 32, 40 (Tex. 2012). Because an appeal is a continuation of judicial action,
it is automatically stayed if it is “against the debtor.” 11 U.S.C. § 362(a).
Generally, if the debtor was the plaintiff in the court below, the stay does not
apply; however, if the debtor was the defendant, as was the case here, any further
action is stayed. See Marcus, Stowell & Beye Gov’t Sec., Inc. v. Jefferson Inv.
Corp., 797 F.2d 227, 230 n.4 (5th Cir. 1986).
Rule 8.1 of the Texas Rules of Appellate Procedure provides that any party
may file a notice that a party is in bankruptcy. Rule 8.2 of the Texas Rules of
Appellate Procedure provides:
A bankruptcy suspends the appeal and all periods in these rules from
*
Yuen filed a bankruptcy petition United States Bankruptcy Court for the Southern
District of Texas, case no. 13-30249.
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the date when the bankruptcy petition is filed until the appellate court
reinstates or severs the appeal in accordance with federal law. A
period that began to run and had not expired at the time the
proceeding was suspended begins anew when the proceeding is
reinstated or severed under 8.3. A document filed by a party while the
proceeding is suspended will be deemed filed on the same day, but
after, the court reinstates or severs the appeal and will not be
considered ineffective because it was filed while the proceeding was
suspended.
TEX. R. APP. P. 8.2. Rule 8.3 of the Texas Rules of Appellate Procedure provides
that “a party may move the appellate court to reinstate the appeal if permitted by
federal law or the bankruptcy court.” It also provides that “[a] party may move to
sever the appeal with respect to the bankrupt party and to reinstate the appeal with
respect to the other parties.” TEX. R. APP. P. 8.3.
By virtue of Rule 8.2, the Court abates the entire appeal. We also withdraw
our opinion and judgment of January 31, 2013. This order does not preclude
reissuance of the same opinion and judgment once the bankruptcy stay is lifted.
See Howell v. Thompson, 839 S.W.2d 92 (Tex. 1992) (order).
The parties are ordered to notify this court when the bankruptcy stay is
lifted, by termination of the bankruptcy or otherwise. The court will not rule on
any pending motions until the bankruptcy stay is lifted.
It is so ORDERED.
PER CURIAM
Panel consists of Justices Bland, Massengale, and Brown.
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