Order issued February 26, 2013

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-10-00519-CV

———————————

OKON EYO ONYUNG, M.D., THE LAW OFFICES OF YUEN & 

ASSOCIATES, P.C., THE LAW OFFICES OF YUEN & ASSOCIATES, 

PLLC, AND XENOS YUEN, Appellants

V.

COMFORT NKASI ONYUNG, CHRISTINE ENEBONG ONYUNG, 

NNAEMEKA ODUNZE, INDIVIDUALLY AND AS TRUSTEE OF THE 

ONYUNG LIVING TRUST, ODUNZE & LAZ, L.L.P., AND VICTOR 

IHEZUKWU, Appellees

On Appeal from the 434th District Court

Fort Bend County, Texas

Trial Court Case No. 04-CV-140141

ORDER ON CONTINUING ABATEMENT

On January 31, 2013, this court issued an opinion and judgment in this case.
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On February 21, 2013, appellant Xenos Yuen informed the court that he had filed a 

bankruptcy petition under Chapter 13 of the United States Bankruptcy Code on 

January 21, 2013, ten days before the issuance of the court’s opinion.*

Section 362(a) of the United States Bankruptcy Code provides that once a 

petition in bankruptcy is filed, it operates as an automatic stay against the 

commencement or continuation of any judicial, administrative, or other proceeding 

against the debtor. 11 U.S.C. §362(a). Any actions taken in violation of the 

automatic stay, including judgments or other court actions, are void. Kalb v. 

Feuerstein, 308 U.S. 433, 440, 60 S. Ct. 343, 346–47 (1940); York v. State, 373 

S.W.3d 32, 40 (Tex. 2012). Because an appeal is a continuation of judicial action, 

it is automatically stayed if it is “against the debtor.” 11 U.S.C. § 362(a). 

Generally, if the debtor was the plaintiff in the court below, the stay does not 

apply; however, if the debtor was the defendant, as was the case here, any further 

action is stayed. See Marcus, Stowell & Beye Gov’t Sec., Inc. v. Jefferson Inv. 

Corp., 797 F.2d 227, 230 n.4 (5th Cir. 1986).

Rule 8.1 of the Texas Rules of Appellate Procedure provides that any party 

may file a notice that a party is in bankruptcy. Rule 8.2 of the Texas Rules of 

Appellate Procedure provides:

A bankruptcy suspends the appeal and all periods in these rules from 

 

* Yuen filed a bankruptcy petition United States Bankruptcy Court for the Southern 

District of Texas, case no. 13-30249.
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the date when the bankruptcy petition is filed until the appellate court 

reinstates or severs the appeal in accordance with federal law. A 

period that began to run and had not expired at the time the 

proceeding was suspended begins anew when the proceeding is 

reinstated or severed under 8.3. A document filed by a party while the 

proceeding is suspended will be deemed filed on the same day, but 

after, the court reinstates or severs the appeal and will not be 

considered ineffective because it was filed while the proceeding was 

suspended.

TEX. R. APP. P. 8.2. Rule 8.3 of the Texas Rules of Appellate Procedure provides 

that “a party may move the appellate court to reinstate the appeal if permitted by 

federal law or the bankruptcy court.” It also provides that “[a] party may move to 

sever the appeal with respect to the bankrupt party and to reinstate the appeal with 

respect to the other parties.” TEX. R. APP. P. 8.3.

By virtue of Rule 8.2, the Court abates the entire appeal. We also withdraw 

our opinion and judgment of January 31, 2013. This order does not preclude 

reissuance of the same opinion and judgment once the bankruptcy stay is lifted. 

See Howell v. Thompson, 839 S.W.2d 92 (Tex. 1992) (order).

The parties are ordered to notify this court when the bankruptcy stay is 

lifted, by termination of the bankruptcy or otherwise. The court will not rule on 

any pending motions until the bankruptcy stay is lifted.

It is so ORDERED.

PER CURIAM

Panel consists of Justices Bland, Massengale, and Brown.