
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS





TONY SARP,

                            Appellant,

v.


LLOYD MCCONNELL D/B/A CACTUS
CUSTOM KNIVES,

                            Appellee.

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No. 08-03-00114-CV

Appeal from the

County Court at Law

of Ector County, Texas 

(TC# CC-14,857) 





MEMORANDUM  OPINION

            On February 5, 2004, this Court issued an opinion and judgment affirming the denial of
Appellant’s special appearance.  See Sarp v. McConnell, No. 08-03-00114-CV, 2004 WL 231932
(Tex.App.--El Paso Feb. 5, 2004, no pet.)(mem. op.).  On March 2, 2004, Appellant’s attorney
advised the Court in writing that Appellant had petitioned for bankruptcy.  We therefore issued
an order abating the appeal and noting that any further action in the appeal was automatically
stayed pursuant to bankruptcy law.  The order provided that the appeal would be reinstated upon
a motion showing that the automatic stay has been lifted and specifying the action required by the
Court.
            We subsequently received documentation from the bankruptcy court regarding the
bankruptcy proceeding.  This documentation shows that the Chapter 7 trustee filed a “Report of
No Distribution,” which states that the trustee neither received any property nor paid any money
on behalf of the bankruptcy estate.  Although the bankruptcy case was closed on June 15, 2010,
the documentation indicates that Appellant was denied a discharge.  The documentation also
suggests that the bankruptcy case was actually filed in November 2003--before our opinion
issued.
            Upon receiving this documentation, we issued an order directing Appellant to provide a
written status report, stating the date that the bankruptcy petition was filed and the status of the
bankruptcy proceeding and specifying what action should be taken by this Court.  In the event
that Appellee disagreed with the status report, the order gave him ten days to file a response.
            Appellant’s status report confirms that Appellant filed a voluntary bankruptcy petition on
November 13, 2003 and that the bankruptcy case was closed on June 15, 2010.  The status report
states that the bankruptcy proceeding “was a Chapter 7, no asset case” and requests that the
appeal be dismissed as moot.  Appellee has not filed a response.
            An opinion or judgment is void if it was issued after the filing of a bankruptcy petition. 
Howell v. Thompson, 839 S.W.2d 92, 92 (Tex. 1992); Cont’l Casing Corp. v. Samedan Oil
Corp., 751 S.W.2d 499, 501 (Tex. 1988).  Accordingly, our opinion and judgment issued on
February 5, 2004 are void.
            Because the information provided to the Court demonstrates that the bankruptcy
proceeding has been closed, this appeal will be reinstated.  See Tex.R.App.P. 8.2.  The issue that
remains is whether we should reissue the same opinion and judgment, dismiss the appeal as
moot, or take some other action.  See Howell, 839 S.W.2d at 92 (stating that although the
appellate court’s order and judgment were void because they were entered while a bankruptcy
proceeding was pending, the appellate court was not precluded from reissuing the same opinion
and judgment after the automatic stay was lifted).
            A debtor’s discharge in bankruptcy may render an appeal involving the debtor moot.  See
Chae v. Schneider, 244 S.W.3d 425, 426-27 (Tex.App.--Eastland 2007, no pet.).  When a case
becomes moot on appeal, we do not merely dismiss the appeal.  Instead, the underlying cause,
including the judgment and interlocutory orders, must ordinarily be set aside.  See In re S.J.C.,
304 S.W.3d 563, 569 (Tex.App.--El Paso 2010, no pet.); see also Bridgestone Corp. v. Stubrin,
No. 08-02-00124-CV, 2002 WL 31087238, at *1 (Tex.App.--El Paso Sept. 19, 2002, no pet.)
(not designated for publication)(vacating an order denying a special appearance when the case
became moot on appeal).
            The information before the Court does not demonstrate that Appellant was granted a
discharge, and Appellant does not articulate any other reason why the appeal would be moot. 
Moreover, Appellant requests only that the appeal be dismissed.  Appellee has not objected to
this disposition.  Under these circumstances, we will dismiss the appeal, but will not set aside the
underlying cause.
            This appeal is REINSTATED on the docket of this Court.  The opinion and judgment
issued on February 5, 2004 are WITHDRAWN as void.  The appeal is DISMISSED WITH
PREJUDICE.


January 12, 2011
DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Rivera, JJ.
