Shell Construction, Inc. v. Mike Lauf and Pat Clancy ( 1993 )

Shell Constr., Inc. v. Lauf IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-92-329-CV





SHELL CONSTRUCTION, INC.,

APPELLANT

vs.

MIKE LAUF AND PAT CLANCY,

APPELLEES

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT

NO. 91-4256B, HONORABLE PAUL R. DAVIS, JR., JUDGE PRESIDING

PER CURIAM

Appellant Shell Construction, Inc. sued appellees Mike Lauf and Pat Clancy for breach of a construction contract, and appellees counterclaimed against Shell and Albert A. Wolfe, III. The district court severed the counterclaim and rendered judgment for appellees. Shell perfected its appeal and filed its brief. On August 31, 1992, appellee Clancy filed for bankruptcy, thus, preventing further action in the appeal. In re Clancy, No. 92-12865 (Bankr. W.D. Tex.); see 11 U.S.C. § 362 (1988) (automatic stay in bankruptcy). Clancy was discharged from bankruptcy on June 4, 1993.

After learning of Clancy's discharge in bankruptcy by a routine check with the bankruptcy clerk, the Clerk of this Court wrote the parties on October 8, 1993, and requested a certified copy of the discharge order by October 25, 1993. The parties did not reply as requested, and the Clerk wrote again on November 1, 1993, and requested a certified copy of the discharge order by November 16, 1993. Counsel for Shell responded on November 10, 1993, by tendering a copy of the discharge order in In re Wolfe, No. 93-11506 FRM (Bankr. W.D. Tex.). The Clerk wrote yet again on November 18, 1993, and requested a certified copy of the discharge order by November 29, 1993. This last letter also stated that the Court would dismiss the appeal unless Shell or any other party desiring to continue the appeal tendered in the Clerk's office by November 29, 1993, a response showing grounds for continuing the appeal. See Tex. R. App. P. 60(a)(2). The parties did not answer.

The Court is unable to proceed without knowledge of the effect of Clancy's discharge in bankruptcy on this appeal. The Clerk has repeatedly requested this information, but to no avail. We, therefore, have no choice but to dismiss the appeal for want of prosecution.

The appeal is dismissed.

Before Chief Justice Carroll, Justices Aboussie and B. A. Smith

Appeal Dismissed

Filed: December 15, 1993

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