Whitaker, James R. v. Moroney Farms Homewoners' Association, Inc.

• Court: Court of Appeals of Texas
• Decided: January 8, 2020
• Docket: 05-10-00038-CV
• Status: Published

Opinion

DISMISS and Opinion Filed January 8, 2020

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-10-00038-CV

JAMES R. WHITAKER, Appellant V. MORONEY FARMS HOMEOWNERS' ASSOCIATION, INC., Appellee

On Appeal from the 296th Judicial District Court Collin County, Texas Trial Court Cause No. 296-04349-07

MEMORANDUM OPINION Before Chief Justice Burns, Justice Molberg, and Justice Nowell Opinion by Chief Justice Burns This appeal was filed on January 7, 2010 and, before the record was due, was ordered

abated and administratively closed on January 21, 2010 due to appellant James R. Whitaker’s

bankruptcy. See TEX. R. APP. P. 8.2. Our order abating the appeal provided that we would reinstate

the appeal upon a party’s motion showing federal law or the bankruptcy court permitted

reinstatement. See id. 8.3.

On March 12, 2019, the Court informed the parties by letter that it had learned that the

bankruptcy case had been discharged on December 6, 2011. The Court further informed the parties

that the appeal would be administratively reinstated and would be dismissed for want of

prosecution or for failure to respond to a Court order or notice from the Clerk of the Court unless

any party, within ten days, gave cause as to why it should not be dismissed. See id. 42.3(b), (c).

On March 21, 2019, Whitaker responded, addressing the merits of his appeal, but provided no explanation for his delay in providing the Court with a copy of the bankruptcy order and no proof

that this appeal may proceed.

By order dated November 22, 2019, we again cautioned the parties that this appeal would

be dismissed for want of prosecution or for failure to respond to a Court order or notice from the

Clerk of the Court unless any party, within ten days, gave cause explaining the delay in prosecuting

this appeal. See id. By letter dated November 30, 2019, Whitaker responded, this time providing

the Court with a copy of the December 6, 2011 bankruptcy discharge order. Whitaker explained

that “although the [c]hapter 7 part of the bankruptcy case was closed, a related adversary

proceeding continued in the bankruptcy and federal appellate courts which delayed the prosecution

of this appeal.” The adversary proceeding concluded on March 18, 2016.

By letter dated December 2, 2019, Moroney Farms responded, explaining that based on the

Court’s order denying Whitaker’s motion to reinstate, it believed the case had already been

dismissed. Further, Moroney Farms argued that the adversary proceeding addressed the same

issues Whitaker wants to bring before this Court. By letter dated December 5, 2019, Whitaker

responded, generally contending that the bankruptcy court lacked jurisdiction to address the

problems in the state court judgment that formed the basis for this appeal.

Whitaker filed this appeal on January 7, 2010. This matter was pending in abatement for a

little over seven years past the conclusion of Whitaker’s bankruptcy before being administratively

reinstated. And though we acknowledge that an adversary proceeding stemmed from the original

bankruptcy, that matter concluded in 2016. For almost three years, the parties failed to notify the

Court that this appeal could proceed. Accordingly, we dismiss the appeal for want of prosecution.

See id. 42.3(b).

/Robert D. Burns, III/ ROBERT D. BURNS, III 100038F.P05 CHIEF JUSTICE

–2– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JAMES R. WHITAKER, Appellant On Appeal from the 296th Judicial District Court, Collin County, Texas No. 05-10-00038-CV V. Trial Court Cause No. 296-04349-07. Opinion delivered by Chief Justice Burns. MORONEY FARMS HOMEOWNERS' Justices Molberg and Nowell participating. ASSOCIATION, INC., Appellee

In accordance with this Court’s opinion of this date, the appeal is DISMISSED.

It is ORDERED that appellee MORONEY FARMS HOMEOWNERS' ASSOCIATION, INC. recover its costs of this appeal from appellant JAMES R. WHITAKER.

Judgment entered January 8, 2020

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