Lattin v. Barrett

153 S.W.3d 700, 2005 Tex. App. LEXIS 410, 2005 WL 115454

• Court: Court of Appeals of Texas
• Decided: January 19, 2005
• Docket: No. 10-03-00287-CV
• Status: Published

Opinions

ABATEMENT ORDER

PER CURIAM.

The trial court denied special appearances filed by Appellants in the above cause. This Court affirmed the court’s order in part and reversed it in part by opinion dated November 17, 2004. Lattin v. Barrett, 154 S.W.3d 169, 2004 WL 2610452 (Tex.App.-Waco Nov. 17, 2004, no pet. h.). Appellant Kenneth Lattin filed a motion for rehearing in this Court on December 3. Lattin and Appellant Douglas Benson then filed a notice of removal of the claims against them to bankruptcy court on December 9. Because this Court denied Lattin’s motion for rehearing before receiving notice of removal, the order denying rehearing is not affected by the removal. Because of the removal, we will abate this proceeding, subject to reinstatement when and if the bankruptcy court executes a remand order and the clerk of that court mails a certified copy to this Court. See 28 U.S.C.A. 1447(c) (West Supp.2004); Quaestor Invs., Inc. v. State of Chiapas, Mex., 997 S.W.2d 226, 229 (Tex.1999) (per curiam); cf. In re McDaniel, 149 S.W.3d 860, 860-61 (Tex.App.-Waco 2004, order) (abating mandamus proceeding stayed by bankruptcy).

According to the exhibits attached to the notice of removal Lattin and Benson filed with this Court, the claims against them are related to a bankruptcy case filed by a California corporation. See 28 U.S.C.A. § 1334(b) (West 1993),¹ § 1452(a) (West 1994);² Stewart Title Co. v. Street, 731 S.W.2d 737, 739 (Tex.App.-Fort Worth 1987, orig. proceeding). Title 28, section 1446 governs the removal of an action from state to federal court. 28 U.S.C.A. § 1446 (West 1994 & Supp.2004). Subsection (d) of that statute provides:

Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect removal and the State court shall proceed no further unless and until the case is remanded.

Id. § 1446(d).

The Fifth Circuit has construed this provision to mean that a state court may continue to exercise jurisdiction in a case removed to federal court “until it has been given actual or constructive notice of removal.” Murray v. Ford Motor Co., 770 F.2d 461, 463 (5th Cir.1985) (quoted in Davis v. Est. of Harrison, 214 F.Supp.2d 695, 698 (S.D.Miss.2002)).

Here, this Court denied Lattin’s motion for rehearing on December 14. The cover letter accompanying the notice of removal filed in this Court is dated December 16. The notice was received by this Court and filed on December 20.

Because this Court did not receive actual or constructive notice of the removal until December 20, the December 14 order denying Lattin’s motion for rehearing is valid and effective. Rule of Appellate Procedure 19.1(b) provides that the plenary jurisdiction of this Court extends for thirty days after the denial of the motion for rehearing. Six of those thirty days had elapsed when this Court received notice of removal. The remaining twenty-four days will commence to run when and if the bankruptcy court executes a remand order and the clerk of that court mails a certified copy to this Court. See 28 U.S.C.A. 1447(c); Quaestor Invs., 997 S.W.2d at 229. Until such time, this cause is abated. Cf. McDaniel, 149 S.W.3d at 863.

Chief Justice GRAY dissenting.

1 . 28 U.S.C.A. § 1334(b) provides:

Notwithstanding any Act of Congress that confers exclusive jurisdiction on a court or courts other than the district courts, the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11.

2 . 28 U.S.C.A. § 1452(a) provides:

A party may remove any claim or cause of action in a civil action other than a proceeding before the United States Tax Court or a civil action by a governmental unit to enforce such governmental unit's police or regulatory power, to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim or cause of action under section 1334 of this title.