CENTRAL STATES LOGISTICS, INC. D/B/A DILIGENT DELIVERY SYSTEMS, Appellant
BOC TRUCKING, LLC AND CLARENCE J. MEYERS, III INDIVIDUALLY AND D/B/A BOC LOGISTICS, Appellees
Appeal from the 281st District Court Harris County, Texas
Trial Court Case No. 2014-28384
consists of Justices Jennings, Keyes, and Higley.
ORDER ON MOTION TO CONSOLIDATE
CARTER HIGLEY, JUSTICE
September 2, 2016, Central States Logistics, Inc. d/b/a
Diligent Delivery Systems filed a notice of appeal. The
appeal was assigned the appellate cause number
01-16-00693-CV. On May 18, 2018, BOC Trucking, LLC filed a
notice of appeal. This was assigned a new appellate cause
number, 01-18-00399-CV. BOC Trucking has filed a motion to
consolidate, which Central States opposes. For the reasons
stated in this order, we GRANT the motion.
trial court rendered a judgment in favor of Central States on
June 7, 2016. BOC Trucking filed a motion to modify the
judgment within 30 days of the judgment. BOC Trucking filed a
bankruptcy petition on August 15, 2016. Central States filed
its notice of appeal on September 2, 2016. The appeal was
stayed. The final decree was signed in the bankruptcy
proceeding on December 18, 2017. We reinstated the appeal on
February 27, 2018. On May 18, 2018, BOC Trucking filed a
notice of appeal.
8.2 of the Texas Rules of Appellate Procedure provides,
"A bankruptcy suspends the appeal and all periods in
these rules . . . until the appellate court reinstates . . .
the appeal." Tex.R.App.P. 8.2. Any period that was
running but had not expired before bankruptcy was filed
"begins anew when the proceeding is reinstated."
period to file a notice of appeal is within the rules of
appellate procedure. See Tex. R. App. P. 26.1.
Because BOC Trucking filed a motion to modify the judgment
within 30 days of the signing of the judgment, the period to
file a notice of appeal was 90 days. See Tex. R.
Civ. P. 329b(a), (g); Tex.R.App.P. 26.1(a)(2). This 90-period
had not expired when BOC Trucking filed its bankruptcy
petition. The appeal was reinstated by this court on February
27, 2018. Accordingly, the 90-day deadline to file a notice
of appeal "beg[an] anew" on February 27, 2018.
Tex.R.App.P. 8.2. The reset 90-day deadline, then, expired on
May 28, 2018. BOC Trucking filed its notice of appeal on May
18, 2018. Accordingly, the notice was timely.
States argues BOC Trucking only had 30 days to file a notice
of appeal once the bankruptcy proceeding ended. For support,
it relies on C.J. Machine, Inc. v. Alamo Iron Works,
No. 04-01-00258-CV, 2001 WL 1042251, (Tex. App.-San Antonio
Sept. 12, 2001, no pet.) (mem. op). In C.J. Machine,
the San Antonio court of appeals held that "initial
appellate timetables are not tolled during a bankruptcy
stay" and that rule 8.2 applies only after a party files
a notice of appeal. Id. at *1. The court's
interpretation of 8.2 is based on a misquotation of the rule,
however. The court held rule 8.2 provides "a bankruptcy
suspends the appeal on all periods in these rules .
. . ." Id. (emphasis added). Instead, 8.2
provides, "A bankruptcy suspends the appeal and
all periods in these rules . . . ." Tex.R.App.P. 8.2
(emphasis added). "The appeal" does not modify
"all periods in these rules." The two terms are
disjunctive and a bankruptcy proceeding suspends both.
States also argues that BOC Trucking is precluded from
appealing the trial court's judgment because
"[c]laims preclusion attaches when the Bankruptcy
proceedings are discharged and closed." We do not need
to reach the merits of this argument because, even if true,
claim preclusion is not a jurisdictional bar. See Dolenz
v. Vail, 200 S.W.3d 338, 341 (Tex. App.-Dallas 2006, no
pet.) ("However, collateral estoppel and res judicata
are not jurisdictional issues. Although they may affect the
merits of [a party's] claim, they do not deprive the
court of jurisdiction over the suit."). Regardless of
the merits of this argument, we have jurisdiction over BOC
Trucking's cross-appeal. See id.
we GRANT BOC Trucking's motion to consolidate. We ORDER
that the appellate record, actions, and deadlines in cause
number 01-18-00399-CV be transferred to cause number
01-16-00693-CV and that cause number 01-18-00399-CV be closed
for all purposes. All further matters relating to BOC
Trucking's appeal shall be designated with cause number
further ORDER that cause number 01-16-00693-CV be removed
from submission. The case will be set for submission after
briefing for BOC Trucking's cross-appeal is complete.
a record already exists in this case, we ORDER that BOC
Trucking's cross-appellant's brief be filed within 30
days of this order. Central States's cross-appellee's
brief will be ...