Motor Coach Industries Mexico, S.A. de C.V., f/k/a Dina Autobuses, S.A. de C.V. v. James Hinton, Individually and as Representative of the Estate of Dolores Hinton, Deceased, et al.--Appeal from 170th District Court of McLennan County
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IN THE
TENTH COURT OF APPEALS
No. 10-06-00256-CV
MOTOR COACH INDUSTRIES MEXICO, S.A. DE C.V.,
F/K/A DINA AUTOBUSES, S.A. DE C.V.,
Appellant
v.
JAMES HINTON, INDIVIDUALLY AND AS REPRESENTATIVE OF THE
ESTATE OF DOLORES HINTON, DECEASED, DAVID HINTON,
ROBERT KURYLA, KAREN KURYLA, HATTIE BINNS, RETA HAYNES,
MELINDA GREGER, ALAN HORTON, ELAINE HORTON, RUTH POWELL,
JUDY BENSON, JAMES L. FREEMAN, INDIVIDUALLY AND AS
PERSONAL REPRESENTATIVE OF THE ESTATE OF JO CATHERINE
FREEMAN, DECEASED, JAMES F. FREEMAN, MELANIE JO BROOKS,
SUSAN AKERS BILLS, INDIVIDUALLY AND AS EXECUTRIX OF THE
ESTATES OF ROBERT MELVIN AKERS, DECEASED, AND MILDRED
DELOIS AKERS, DECEASED, ROBERT MELVIN AKERS, JR., PATSY
BEASLEY, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF
WAYNE BEASLEY, DECEASED, SHIRLEY SOMMER, AND PEGGY
ARMSTRONG,
Appellees
And
10-08-00353-CV
MCI SALES AND SERVICE, INC., F/K/A HAUSMAN BUS SALES, INC.,
Appellant
v.
JAMES HINTON, INDIVIDUALLY AND AS REPRESENTATIVE OF THE
ESTATE OF DOLORES HINTON, DECEASED, DAVID HINTON,
ROBERT KURYLA, KAREN KURYLA, HATTIE BINNS, RETA HAYNES,
MELINDA GREGER, ALAN HORTON, ELAINE HORTON, RUTH POWELL,
JUDY BENSON, JAMES L. FREEMAN, INDIVIDUALLY AND AS
PERSONAL REPRESENTATIVE OF THE ESTATE OF JO CATHERINE
FREEMAN, DECEASED, JAMES F. FREEMAN, MELANIE JO BROOKS,
SUSAN AKERS BILLS, INDIVIDUALLY AND AS EXECUTRIX OF THE
ESTATES OF ROBERT MELVIN AKERS, DECEASED, AND MILDRED
DELOIS AKERS, DECEASED, ROBERT MELVIN AKERS, JR., PATSY
BEASLEY, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF
WAYNE BEASLEY, DECEASED, SHIRLEY SOMMER, AND PEGGY
ARMSTRONG,
Appellees
From the 170th District Court
McLennan County, Texas
Trial Court No. 2003-2308-4
DISSENT TO SEVERANCE AND REINSTATEMENT ORDER
The Court’s opinion and judgment in 10-06-00256-CV issued on September 10,
2008.
On September 19, 2008, we received a notice of bankruptcy of one of the
Appellants. On September 19, 2008, we also received Appellees’ motion for extension
of time to file a motion for rehearing. On September 22, 2008, we purported to grant the
Appellees’ motion for extension of time to file a motion for rehearing until October 27,
2008. On September 22, 2008, we received a letter from Appellants regarding the
Court’s purported order granting the extension after the notice of bankruptcy had been
received. On October 7, 2008 we acknowledged the automatic stay due to having
received the notice of bankruptcy, but did not acknowledge the date of the receipt or
the effective date of the stay. Today we purport to sever the proceeding on our own
motion. I would not.
MCI Sales and Service, Inc. v. Hinton
Page 2
I would first clarify the procedural posture of the stay by noting that the Court’s
September 22, 2008 order granting Appellees an extension of time in which to file their
motion for rehearing and extending the due date until October 27, 2008 was a void
order because it was issued after we had received notice of the bankruptcy stay. I
would then inquire of the parties regarding whether the matter was appropriate for
severance; in particular, whether the Appellees’ claims against the Appellants are
severable. In this proceeding it appears that the Appellees brought a single claim, albeit
multiple theories of product liability, against multiple but related corporate Appellants.
The judgment for each Appellee is for the same claim (multiple theories) and precisely
the same damages jointly and severally against each Appellant. Before I vote to attempt
to sever these Appellants, I would request briefing on the issue of severability. Further,
it appears we may be creating an undesirable course of proceeding because, while
represented by able counsel, none of the parties has sought this court’s intervention in
this manner.
Accordingly, I respectfully dissent from the severance and reinstatement order.
TOM GRAY
Chief Justice
Dissent to Severance and Reinstatement Order delivered and filed October 15, 2008
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MCI Sales and Service, Inc. v. Hinton
Page 3
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