Roger H. Broach and Courtney Smith v. Dwight E. Whitfield Individually and Dwight's Moving Company Inc., a Texas Corporation

• Court: Court of Appeals of Texas
• Decided: September 3, 2009
• Docket: 14-05-00157-CV
• Status: Published

Opinion

Dismissed and Memorandum Opinion filed September 3, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00157-CV

ROGER H. BROACH and COURTNEY SMITH, Appellants

V.

DWIGHT E. WHITFIELD and DWIGHT=S MOVING COMPANY, Appellees

On Appeal from the 333rd District Court

Harris County, Texas

Trial Court Cause No. 04-48369

M E M O R A N D U M  O P I N I O N

This is an appeal from a judgment signed December 7, 2004.  On July 28, 2005, this court abated this appeal because appellant Roger Broach petitioned for voluntary bankruptcy in the United States Bankruptcy Court for the Southern District of Texas, under cause number 05-80565-G3-13.  See Tex. R. App. P. 8.2. 

Through the Public Access to Court Electronic Records (PACER) system, the court has learned that the bankruptcy case was closed on November 22, 2005.  The parties failed to advise this court of the bankruptcy court action.

On July 23, 2009, this court issued an order stating that unless any party to the appeal filed a motion demonstrating good cause to retain the appeal within twenty days of the date of the order, this appeal would be dismissed for want of prosecution.  See Tex. R. App. P. 42.3(b).  Appellants filed a response including copies of relevant bankruptcy documents on August 12, 2009. 

In their response, appellants acknowledge that Broach=s 2005 Chapter 13 bankruptcy case was closed in late 2005.  Broach filed another Chapter 13 case in 2007, which was converted to Chapter 7, and an order of discharge was signed and entered on November 20, 2008.  Appellees were scheduled creditors.  Accordingly, Broach=s appeal has been rendered moot.

According to the response, the other appellant, Smith, filed a Chapter 13 proceeding in 2009, and the case was dismissed on April 9, 2009.  Although the response states Smith wants to continue her appeal, she has not demonstrated good cause.  No brief has been filed.  The latest bankruptcy case was dismissed over four months ago, and Smith did not notify this court of the bankruptcy court action until the recently filed response to our order to show cause.  In addition, according to appellants= response, neither appellant had an active bankruptcy case during 2006, and no action was taken to reinstate this appeal.

Accordingly, we reinstate the appeal and order it dismissed.

PER CURIAM

Panel consists of Chief Justice Hedges and Justices Seymore and Sullivan.