Two Story Enterprises, Inc. and Donna Holcomb v. Chris Di Ferrante

Dismissed and Memorandum Opinion filed May 29, 2008 Dismissed and Memorandum Opinion filed May 29, 2008 In The Fourteenth Court of Appeals ____________ NO. 14-07-00969-CV ____________ TWO STORY ENTERPRISES, INC. AND DONNA HOLCOMB, Appellant V. CHRIS DI FERRANTE, Appellee On Appeal from County Court at Law No. 2 Galveston County, Texas Trial Court Cause No. 52,700-A M E M O R A N D U M   O P I N I O N This is an attempted appeal from an order signed July 13, 2006. In the order ,the trial court granted partial summary judgment against Two Story Enterprises, Inc. (ATSE@) and Donna Holcomb in favor of Chris Di Ferrante. Further, the trial court severed Di Ferrante=s claims against TSE and Holcomb on the September 27, 2002 promissory note and guarantee, except for any attorney=s fees, into cause number 52,700-A. Accordingly, the order is final and appealable. On August 14, 2006, TSE and Holcomb each filed a timely motion for new trial. When appellant has filed a timely motion for new trial, motion to modify the judgment, motion to reinstate, or request for findings of fact and conclusion of law, the notice of appeal must be filed within ninety days after the date the judgment is signed. See Tex. R. App. P. 26.1(a). The notice of appeal was therefore due no later than October 11, 2006. Notice of appeal was filed February 5, 2007, by TSE, Holcomb, Donald Young, and Doris Young. The record reflects Holcomb filed a ANOTICE OF BANKRUPTCY FILINGS & STAY OF APPELLATE DEADLINES@ the same day the notice of appeal was filed. The notice asserts that Doris Young filed for bankruptcy on October 3, 2006. That bankruptcy case was dismissed on November 20, 2006. On December 4, 2006, Doris Young again filed for bankruptcy. On December 29, 2006, the bankruptcy court lifted the bankruptcy stay, as of January 8, 2007. Holcomb claims the notice of appeal was due thirty days from that date, on February 7, 2007, and was therefore timely. On January 9, 2008, notification was transmitted to all parties of this court=s intent to dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a). On January 30, 2008, Holcomb, Donald Young, and Doris Young, each acting pro se, filed a response asserting Doris Young=s filings for bankruptcy extended the time to file the notice of appeal. When a party files a bankruptcy petition, an automatic stay goes into effect and abates any judicial proceeding against that party. See In re Southwestern Bell Telephone Co., 35 S.W.3d 604 (Tex. 2000) (orig. proceeding) (citing 11 U.S.C. ' 362(a)). The automatic stay does not operate against non-debtors or even co-debtors, co-tortfeasors, or co-defendants. Id. There was no judicial proceeding against Doris Young in this case when she filed for bankruptcy. She is not a party to the judgment entered on July 13, 2006. On September 25, 2006, she filed a petition in intervention. See Tex. R. Civ. P. 60. A party cannot intervene after judgment has been rendered and become final. See Citizens State Bank of Sealy, Tex. v. Caney Inv., 746 S.W.2d 477, 478 (Tex. 1988); and Beach v. Beach, 912 S.W.2d 345, 347 (Tex. App. B Houston [14th Dist.] 1995, no pet.). Doris Young=s petition in intervention was therefore not proper under Rule 60. See Nacol v. State, 792 S.W.2d 810 (Tex. App. B Houston [14th Dist.] 1990, writ denied). Because she was not a party to the proceeding, Doris Young=s filings for bankruptcy did not operate to extend the time to file the notice of appeal in this case.. Accordingly, appellants= notice of appeal was not filed timely. A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time allowed by Rule 26.1, but within the fifteen-day grace period provided by Rule 26.3 for filing a motion for extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617-18 (Tex. 1997) (construing the predecessor to Rule 26). Appellant=s notice of appeal was not filed within the fifteen-day period provided by Rule 26.3. Appellants= response fails to demonstrate that this court has jurisdiction to entertain the appeal. The appeal is ordered dismissed. PER CURIAM Judgment rendered and Memorandum Opinion filed May 29, 2008. Panel consists of Justices Frost, Seymore, and Guzman.