Chris Holt v. Kim Grigg

Opinion

NUMBER 13-22-00211-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

CHRIS HOLT, Appellant,

v.

KIM GRIGG, Appellee.

On appeal from the 117th District Court of Nueces County, Texas.

ORDER

Before Justices Benavides, Hinojosa, and Silva Order Per Curiam

On July 7, 2022, this Court dismissed this appeal. See Holt v. Grigg, No. 13-22-

00211-CV, 2022 WL 2513514, at *1 (Tex. App.—Corpus Christi–Edinburg July 7, 2022,

no pet. h.) (mem. op.). Appellant Chris Holt, proceeding pro se, has now filed a second

amended motion to reinstate the appeal. Appellant contends that we dismissed the

appeal because he failed to pay the filing fee, however, “the dismissal was erroneous as [a]ppellant is exempt from the fee.” Appellant has also filed an amended docketing

statement in which he references a pending bankruptcy. Appellant asserts that his

“bankruptcy will not impact the appeal as the matters are exempt from the automatic stay

and further, have been specifically exempted by a ruling from the bankruptcy court

pertaining to matters of the modification proceeding on or around June 26, 2021.” We

take judicial notice that in a separate appeal filed by appellant in our appellate cause

number 13-22-00043-CV, In the Interest of J.H., C.H., J.H., and N.H., Children,

appellant’s opposing counsel has identified at least two pending bankruptcy proceedings

in which appellant or an entity associated with appellant are parties.

Under the United States Bankruptcy Code, the filing of a bankruptcy petition

automatically stays:

[T]he commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title[.]

11 U.S.C.A. § 362(a)(1). The automatic stay applies to other litigation even if the trial court

or the parties to the other litigation did not learn of the bankruptcy prior to taking action

against the debtor. Adeleye v. Driscal, 488 S.W.3d 498, 499 (Tex. App.—Houston [14th

Dist.] 2016, no pet.); In re Small, 286 S.W.3d 525, 530 (Tex. App.—Houston [14th Dist.]

2009, orig. proceeding). Further, the stay applies to divorce proceedings to the extent

they seek to determine the division of estate property. See 11 U.S.C.A § 362(b)(2)(A)(iv);

Adeleye, 488 S.W.3d at 499. The stay abates any judicial proceeding against the debtor,

and state courts lack jurisdiction over the debtor and his property until the stay is lifted or

2 modified. See Adeleye, 488 S.W.3d at 499; In re Small, 286 S.W.3d at 530. Any action

taken in violation of the stay is void. See York v. State, 373 S.W.3d 32, 39–40 (Tex. 2012);

Howell v. Thompson, 839 S.W.2d 92, 92 (Tex. 1992) (order) (per curiam); Adeleye, 488

S.W.3d at 499; In re Small, 286 S.W.3d at 530. Because a judgment or decree entered

in violation of the stay is void, it constitutes fundamental error that can be raised for the

first time on appeal and can be raised sua sponte by the appellate court. See Adeleye,

488 S.W.3d at 499; Houston Pipeline Co. v. Bank of Am., N.A., 213 S.W.3d 418, 429

(Tex. App.—Houston [1st Dist.] 2006, no pet.).

Appellant has provided information indicating that he filed a bankruptcy petition

that may have created an automatic stay preventing any proceedings in this case.

However, because we cannot determine whether the existence of the automatic stay was

explored in the trial court, questions remain regarding whether the alleged stay prohibited

any part of the proceedings in this case. As the Texas Supreme Court has explained,

“any limitations the automatic stay may have imposed on these proceedings cannot

simply be hypothesized by the court of appeals sua sponte.” Evans v. Unit 82 Joint

Venture, 377 S.W.3d 694, 695 (Tex. 2012) (per curiam). “The parties should have . . . an

opportunity to develop a record to support their positions and seek a ruling from the trial

court, even if it should turn out that only the bankruptcy court can finally decide the issue.”

Id.; see Adeleye, 488 S.W.3d at 500.

Given the foregoing, we grant appellant’s motion to reinstate, and we withdraw our

prior opinion and judgment. We further abate the appeal and remand the case to the trial

court for a determination regarding whether an automatic bankruptcy stay barred any part

3 of the proceedings in this case. Upon remand, the judge of the trial court shall immediately

cause notice to be given and conduct a hearing to determine this issue. The trial court

shall cause a reporter’s record to be prepared regarding this hearing. The trial court shall

further prepare and file its findings and orders and cause them to be included in a clerk’s

record. The reporter’s record and clerk’s record shall be filed with the Clerk of this Court

within thirty days from the date of this order.

PER CURIAM

Delivered and filed on the 22nd day of September, 2022.