Peacock Hospitality, Inc. D/B/A Holiday Inn Express-Burnet v. Bipin Patel Mahadev, LLC And FDIC ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00278-CV
PEACOCK HOSPITALITY, INC. d/b/a Holiday Inn Express-Burnet,
Appellant
v.
Bipin PATEL, Mahadev, LLC, and
Federal Deposit Insurance Corporation as receiver for First National Bank, N.A.,
Appellees
From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 2012-CI-04054
Honorable Janet P. Littlejohn, Judge Presiding
PER CURIAM
Sitting: Catherine Stone, Chief Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice 1
Delivered and Filed: December 23, 2014
DISMISSED IN PART FOR LACK OF JURISDICTION
This appeal arises from two summary judgments. One summary judgment was granted in
favor of Bipin Patel and Mahadev, LLC. The other summary judgment was granted in favor of
First National Bank, N.A. Peacock Hospitality, Inc. d/b/a Holiday Inn Express-Burnet timely
appealed both summary judgments in this appeal.
1
Not participating.
04-13-000278-CV
On September 9, 2013, Peacock filed its brief, making the appellees’ briefs due by October
9, 2013. On September 18, 2013, appellee First National Bank, N.A. filed a motion for extension
of time to file its brief which was granted, extending the deadline for filing the brief to November
8, 2013. Appellees Patel and Mahadev filed their brief on October 8, 2013.
On October 21, 2013, a motion was filed notifying this court that the Federal Deposit
Insurance Corporation had been appointed as receiver for appellee First National Bank, N.A., and
this court granted the request in the motion to substitute the FDIC in its capacity as receiver as
appellee. On October 31, 2013, the FDIC filed a motion for automatic stay pursuant to 12 U.S.C.
§ 1821(d)(12)(A), which imposes an automatic stay of judicial proceedings when the FDIC is
appointed as a receiver. See 12 U.S.C. § 1821(d)(12)(A). By order dated November 1, 2013, this
court granted the FDIC’s motion and stayed all proceedings in the appeal “pending further order
of this court.”
On April 22, 2014, the FDIC filed a motion to dismiss asserting that Peacock had failed to
take any action to continue its appeal against the FDIC within sixty days of its receipt of notice
that the FDIC had disallowed its claim relating to this matter. See 12 U.S.C. § 1821(d)(6)(A)(ii).
Where a claimant fails to take any action to continue its appeal within the sixty day deadline, the
statute states the “disallowance shall be final, and the claimant shall have no further rights or
remedies with respect to such claim.” Id. at § 1821(d)(6)(B)(ii). Moreover, when the disallowance
of a claim becomes final, no court has jurisdiction over the claim. Id. at § 1821(d)(13)(D); Hanson
v. F.D.I.C., 113 F.3d 866, 869-70 (8th Cir. 1997).
On May 1, 2014, Peacock filed a response to the motion, stating that it was not required to
take any action because this court’s stay only stayed the appeal for ninety days. Peacock contends
that the appeal automatically continued on this court’s docket at the conclusion of the ninety days
without any action on its part. See Dougherty v. Deutsche Bank Nat. Co., No. 11-CV-0093, 2011
-2-
04-13-000278-CV
WL 3565079, at 6 (E.D. Penn. Aug. 12, 2011) (discussing cases distinguishing actions necessary
to continue a case when the stay is of definite duration as opposed to indefinite duration). We
disagree because this court’s prior order clearly stated that the appeal was stayed “pending further
order of this court.” Because this court’s stay order was of indefinite duration, Peacock was
required to file a motion to reinstate or take some other action to continue the proceedings in the
appeal.
Because Peacock failed to take any action to continue this appeal within sixty days of its
receipt of the FDIC’s notice that its claim was disallowed, the appeal against the FDIC is
dismissed. The remainder of the appeal is reinstated on the docket of this court, and the clerk of
this court is directed to set Peacock’s appeal against appellees Patel and Mahadev for submission.
PER CURIAM
-3-