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Loper v. Smith Corona6/21/2000
Appellant Kurt Wayne Loper, an inmate proceeding pro se and in forma pauperis, appeals from the trial court's order dismissing with prejudice his cause of action against appellee Smith Corona, Inc. By two issues, Loper contends (1) Smith Corona's motion to dismiss was improperly granted because it was filed by an attorney not designated attorney of record for Smith Corona; and (2) the trial court improperly granted the motion to dismiss pursuant to section 14.003(b) of the Texas Civil Practice and Remedies Code Annotated (Vernon Supp. 2000). Based upon the rationale expressed herein, we affirm.
In September 1995, Loper purchased a Smith Corona personal word processor through a prison commissary. The word processor came with a 90-day limited warranty providing:
Smith Corona warrants these typewriters and word processors against defects in material or workmanship for a period of 90 days from the date of original purchase for use, and agrees to repair or, at our option, replace any defective unit without charge for either parts or labor. Proof of Purchase will be required.
By his pleading, Loper averred that 41 days after expiration of the 90- day warranty period, he began experiencing a problem with the print hammer and print wheel of his word processor. He also alleged that Smith Corona had knowingly sold a defective product and as a result of the "deception and misrepresentation," he had suffered damages. Although inartfully drafted, by his petition, Loper invoked the Deceptive Trade Practices-Consumer Protection Act. Tex. Bus. & Com. Code Ann. §§ 17.41 - 17.63 (Vernon 1987 & Pamph. Supp. 2000).
By its original answer and plea in abatement, Smith Corona by and through its attorney, Angela R. Hoyt of Thompson and Knight, requested an abatement for 60 days due to Loper's failure to give 60 days notice as required by section 17.505 of the Act. Smith Corona also filed a general denial to Loper's allegations, a verified denial, and numerous affirmative defenses, including discharge in bankruptcy . Then, approximately 18 months later, Smith Corona, represented by attorney Kevin J. Parks, also of Thompson and Knight, filed a motion to dismiss contending that under chapter 14 of the Texas Civil Practice and Remedies Code governing inmate litigation, Loper's claim was frivolous because the only representation Smith Corona had made was a 90-day warranty, which Loper admitted had expired.
Loper responded to Smith Corona's motion to dismiss contending that a dismissal of his claim because a "realistic chance of ultimate success is slight," is no longer appropriate and also complained that Mr. Parks was not the attorney of record because his permission had not been sought to change Ms. Hoyt's designation. By its order dated May 4, 1999, the trial court rendered judgment in favor of Smith Corona and dismissed Loper's cause of action with prejudice and without specifying what factors of section 14.003(b) were considered.
When Loper filed his original petition on September 19, 1997, he acknowledged that Smith Corona was bankrupt. Because the Bankruptcy Code provides that once a bankruptcy petition is filed, an automatic stay is imposed prohibiting the commencement or continuation of any judicial actions or proceedings against a debtor, 11 U.S.C. § 362(a)(1) (1993); Swoboda v. Wilshire Credit Corp., 975 S.W.2d 770, 778 (Tex.App.- -Corpus Christi 1998, pet. denied), this Court abated and remanded this proceeding on February 7, 2000, to determine the status of the bankruptcy. Following a hearing, the trial court found that pursuant to an order from the United States Bankruptcy Court, Smith Corona's automatic stay was lifted on January 22, 1997, pursu
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