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Dunn v. Menassen9/7/1995
James Dunn appeals an adverse judgement in favor of M & M Distributors. After a bench trial, the trial court awarded actual and exemplary damages and prejudgment interest totaling $79,915.95. Appellant complains of error in several general areas: that the trial court erred in failing to abate because of the pendency of bankruptcy ; legal insufficiency of the evidence; and that M & M is not entitled to pre-judgment interest or to exemplary damages. We affirm in part and reverse and render in part.
Factual Background
In 1989, M & M Distributors sued Dunn, alleging that Dunn was to sell merchandise owned by M & M, retain a commission, and pay the remaining monies to M & M. In the original petition, Jose Menassen stated that in 1985 he did business as M & M Distributors and that Miguel Menassen, his brother, was his general manager. The actions complained of occurred in September and October 1985. M & M pled a cause of action under the Deceptive Trade Practices Act and facts that would support other causes of action. Dunn answered and subsequently obtained summary judgment. The summary judgement was appealed to this court in M & M Distributors v. Dunn, 819 S.W.2d 639 (Tex. App. -- Corpus Christi 1991, no writ). We reversed and remanded "the judgement of the trial court on the misrepresentation claim. Summary judgement rendered by the trial court on all other causes of action is affirmed." Id. at 641.
In 1993, Dunn filed a Motion to Abate alleging that Miguel A. Mena was the owner of M & M Distributors, and that he had filed for bankruptcy . The trial court held an evidentiary hearing on the motion to abate. Miguel Menassen testified that his name is Miguel Menassen, that his last name is pronounced Mena, that he became the owner of M & M Distributors in 1987, that before 1987, his brother, Jose, was the sole owner, and that Miguel filed for bankruptcy in August 1990. In Miguel's Bankruptcy Petition, he claimed that he was the owner of M & M and had been since 1983. Miguel further testified that he misunderstood the question on the bankruptcy petition and that he was not the owner of M & M until 1987. He testified that from 1983 to 1987, Jose Menassen owned the business and he was only an employee with no ownership interest.
William G. West testified by deposition at the hearing to abate. He had been the bankruptcy trustee of the estate of Miguel Menassen. He testified that the bankruptcy had closed and with the closure he was dismissed as trustee. Mr. West filed a plea in intervention in this action, asserting an interest in the controversy, in that the cause of action asserted by Jose Menassen belongs to the bankruptcy estate of Miguel Mena. However, the only relief sought by Mr. West was "that the parties take notice" of his plea in intervention, that he recover his costs and for general relief. At the conclusion of the hearing, the trial court denied the motion to abate.
Motion to Abate
By points one through seven appellant complains of the trial court's refusal to abate. Appellant contends that the trial court did not have jurisdiction to determine whether the claim against Dunn belonged to Jose or to Miguel; rather, the bankruptcy court had exclusive jurisdiction to do so.
Initially we note that the mere pendency of a bankruptcy action does not automatically deprive a State court of all jurisdiction. Fitch v. Jones, 441 S.W.2d 187, 188 (Tex. 1969); Bishop v. Geno Designs, Inc., 631 S.W.2d 581, 583 (Tex. App. -- Tyler 1982, no writ); Valley Int'l Properties, Inc. v. Los Campeones, Inc., 568 S.W.2d 680, 686 (Tex. Civ. App. -- Corpus Christi 1978, writ ref'd n.r.e.), appea
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