*2 DUNN, Before WARREN and COHEN, JJ.
OPINION
DUNN, Justiсe. This is an from a on a verdict, jury awarding $180,000 in dam- ages, plus fees, attorney’s in a suit under Deceptive (DTPA) Trade Practices Act Star-Tel, Stephen- Inc. and Ed. R. (appellants) jointly son severally. Nacogdoches Telecommunications, Inc. (appellee) brought against Star-Tel, suit Inc., lоng service, franchisor of a distance owner, Stephenson, and Ed R. under a DTPA and breach of contract action, concerning cause of a franchise agreement parties. between The facts surrounding agreement allegations made the suit are immaterial to the points However, of error raised on pleadings, filed, various motions and orders granted significant points are to two of the challenging non-compliance with statutory prerequisite notice to the DTPA cause of action.
Appellee
original petition
filed its
on Feb-
1, 1984,
ruary
Naсogdoches
County.
Upon grant
appellants’
motion to trans-
venue,
motions,
pleadings,
fer
and or-
ders
County
July
were refiled Brazos
31, 1986, appellee
1984. On October
original
filed a
petition,
second amended
alleged
where for the first time it
that on
1, 1984,
February
appellants
were
sрecific
notice of the
com-
plaint
and the amount of
includ-
ing
fees,
attorney’s
in accordance with the
12, 1986, during
DTPA. On December
tri-
al,
charge
jury, appel-
but before the
to the
supplemental special exception
lants filed a
appellee’s
petition,
seсond amended
alleged
they
appellee
which
had failed
plead
statutory prerequisite
to its DTPA cause of action.
request
appellee
ordered to make a
be
trial
pleadings
plaint, damages,
amendment
their
was de-
but
(1)
(Appellants previously
they
petition
nied.
had filed
did
special
allege
exception
original peti-
to the first
that notice was sent 30
suit,
tion,
filing
appellee’s
but made no mention of
date
1,1984,
notice.) pleaded, February
plead
failure
was the same as
verdict,
filing stamped
original
the date of
on the
jury
After the
filed a
*3
and,
petition,
therefore,
pleadings
the
dem-
judgment [notwithstanding
motion for
the
days
filing
onstrated that 30
notice before
requesting
disregard
the
to
court
verdict]
given.
not
was
action,
findings
all
on the DTPA cause of
appellee’s alleged
because of
failure to
three,
point
appellants
In
of error
chal-
prove
prerequisite
Denying ap-
the
notice.
lenge the trial court’s denial of their motion
motion,
pellants’
judg-
the court entered
judgment,
letter,”
for
because the “demand
jury’s findings
ment based on the
and
by appellee,
entered into evidence
demon-
$173,000
in
awarded
actual
strated on its face
notice
not
that
had
been
$2,000
damages
in mandatory statutory
given
days
filing.
before
The date of
$5,000
damages
and
in
under the
additional
evidence,
the letter entered into
like the
action,
DTPA
attorney’s
cause of
fees of
pleаded,
date of the notice
was the same
$30,000,
specified
and further
sums for at-
original filing stamped
date of the
on the
torney’s
in
of
fees
the event
.
original petition.
damages
was awarded
Appellee challenges
appropriateness
the
against
Stephenson, jointly
аnd
Star-Tel
special exception
and the timeliness of the
severally.
and
particular
plead
to raise this
defect in the
challenge
Points of error one and three
ings. Appellee
argues
appel
further
that
appellee’s
plead
prove
failure to
and
the
one,
point
lants have
both
of error
waived
prerequisite
required
notice
in section 17.- challenging appellee’s
fully plead
failure to
DTPA,
505(a)
notice,
of the
which reads:
prerequisite
point
the
and
of error
three, challenging appellee’s failure to
(a)
рrerequisite
filing
As
suit seek-
a
to
a
notice,
prove
ap
the
because
ing damages under
of
Subdivision
pellants
bring
failed to
forth a state
have
(b)
Subsection
of Section 17.50 of this
facts. Guthrie v. National
ment of
subchapter against any person, a con-
Homes,
(Tex.1965);
394 S.W.2d
give
the
sumer shall
written nоtice to
Stores,
Lane
Fair
150 Tex.
filing
person
days
at least 30
the
before
(1951); Republic
Bankers
advising
person
the consum-
Life
suit
the
of
McCool,
(Tex.
Ins. Co.
son v.
In this
defect
absence
presumption that the evidence
prerequisite notice
there is a
plained of is that
judgment.
Chapter
Bankruptcy
der
11 of the
S.W.
Code.
original
brought against ap-
suit was
2d at 495.
pellants.
Point of error
is overruled.
two
Bankruptcy
Code
U.S.C. sec.
Appellee
counterpoints.
raises two
1978)
(Supp.
automatically stays
II
all
Counterpoint
attor
one seeks the additional
proceedings “against
judicial
the debtor.”
$5,000
ney’s
by the court
fees of
awarded
interpreted
staying
This article has been
as
appeal
of
of
the event
an
to the court
appeals
proceedings
origi
that were
being
challenge
appeals. There
to this
brought against
debtor,
nally
regard
award, counterpoint one is sustained.
appellant
less of whether the debtor is the
two,
counterpoint
appellee
re
appellee.
Freeman v. Comm’r
Inter
im
quests
percent penalty
that a 10
be
Revenue,
1091,
(5th
799 F.2d
1093-4
nal
posed
appellants, pursuant
to Tex.R. Cir.1986); Teachers Ins. Annuity
&
Ass’n
84,
App.P.
imposition
allows the
of a
Butler,
(2d
which
America v.
803 F.2d
delay
Cir.1986);
penalty
taken for
Association
St. Croix Condo
Appellee alleges
Corp.,
Owners v.
Croix Hotel
without sufficient cause.
minium
St.
(3d Cir.1982). Any
682 F.2d
court
appellants’ appeal is
frivolous because
stay
action in violation of the automatic
appellants’
to file a
failure
statement
void, regardless of
had
whether the court
facts.
bankruptcy,
Kalb v. Feuer
imposition
penalty,
of a
Before
stein,
308 U.S.
60 S.Ct.
84 L.Ed.
clearly
record must
show that at the time
*5
(1940);
State, 667
370
Wallen v.
S.W.2d
filed,
appeal
appellant
was
had no
621,
1984, writ),
(Tex.App.
623
no
— Austin
grounds
judgment
reasonable
believe
spite
of the
failure to
and even
debtor’s
Ceres,
Beago
would be reversed.
v.
619
timely suggestion
bankruptcy,
In
file a
293,
(Tex.App.
295
S.W.2d
[1st
— Houston
810,
Homes, Inc.,
re
74 B.R.
814 — 15
Roxse
1981,
writ) (explaining
no
Tex.R.
Dist.]
(Bankr.D.C.Mass.1987);
Clark,
re
483,
Tex.R.App.P.
predecessor
Civ.P.
885,
(Bankr.E.D.Pa.1987).
B.R.
889-90
84).
of the confusion over the
Because
However, stays pursuant to sec
DTPA
prerequisite notice section of the
do
tion 362 are limited to debtors and
remedy
noncompli
for
and the
encompass non-bankrupt
co-defendants.
ance,
say
we cannot
that
had no
65;
Teachers,
Wedgeworth
803 F.2d at
v.
grounds
judgment
reasonable
believе
541,
(5th
Corp., 706 F.2d
Fiberboard
be reversed.
would
Cir.1983).
bankruptcy courts have
Several
counterpoint
two is
Appellee’s
number
that,
general equity pow
found
under their
overruled.
ers, they may
stay
extend the automatic
if
court, including non-bankrupt general partners
it contrib
judgment
of the trial
to aсhieve reha
$5,000 utes to
debtors’ efforts
appellee of
the additional award for
Id, (citing In re John-Mansville
bilitation.
affirmed.
appeal,
fees on
is
(Bankr.S.D.N.Y.1983)
Corp.,
holding the absence a statement facts, presume we must the evi- judgment
dence the court’s in- damages against Stepehnson, awarding argue that, dividually. Appellants unlike special there sub- was no issue question mitted the matter in in this case. general rule is that an inde pendent recovery if no ground of is waived requested,
issue thereon is Corp., Harmes v. Arklatex 279; (Tex.1981); Tex.R.Civ.P. objection required preserve in order to is
error, Co., Malone Carl Kisabeth (Tex.App. Worth — Fort n.r.e.). However, excep ref’d writ an general tion exists to this rule when ground recovery conclusively is estab Harmes, lished the evidence. 615 S.W. 2d at 179. of the absence statement presume ground must we recovery conclusively established. rehearing motion de- is nied, judgment and the of the trial court
against appellant Stephenson, individually, affirmed. The
against appellant is stayed pursu- Star-Tel
ant to section 362 of Bankruptcy Code. Appellant Star-Tel is to notify ordered this upon
Court bankruptcy conclusion of the proceedings.
Henry KASPAR, Appellant, N. THORNE, Lansing Appellee. S. No. 05-87-00750-CV. Texas, Appeals Court Dallas. 2,May 1988. Supplemental Opinion on Rehearing July