Challenge Transp., Inc. v. J-Gem Transp., Inc., J-GEM

• Decision Date: 31 July 1986
• Docket Number: J-GEM,No. C14-85-942-CV,C14-85-942-CV
• Parties: CHALLENGE TRANSPORTATION, INC., et al., Appellants, v.TRANSPORTATION, INC., Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 115

717 S.W.2d 115

CHALLENGE TRANSPORTATION, INC., et al., Appellants, v. J-GEM TRANSPORTATION, INC., Appellee.

No. C14-85-942-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

July 31, 1986.

Rehearing Denied Sept. 11, 1986.

Earl Rutledge, Hurst, for appellants.

Stephen P. Wright, Houston, for appellee.

Before JUNELL, DRAUGHN and ELLIS, JJ.

OPINION

JUNELL, Justice.

Challenge Transportation, Inc. and Barney Schulz appeal a judgment in a suit under the Texas Deceptive Trade Practices Act (DTPA) in favor of J-Gem Transportation Inc. for the amount of $8,600 plus attorney's fees.

In three points of error, appellants allege the trial court erred in rendering judgment for the plaintiff because (1) written notice was not given as required by section 17.50 of the DTPA; (2) J-Gem failed to prove it was a consumer under the DTPA; and (3) J-Gem failed to prove breach of an oral or written contract and waived all other alleged causes of action by electing to seek judgment only on its DTPA cause of action. We affirm.

J-Gem entered into an agreement to lease three tractor trailers from Barshu, Inc., a corporation owned and operated by appellant Schulz. J-Gem needed the trailers to move freight from California to Louisiana. Under the lease, J-Gem was to pay $5,700 for use of the three trailers. The leased trucks waited about a week in California before J-Gem's freight was loaded. When the leased trucks reached Jefferson, Texas, Schulz informed J-Gem that delivery would not be made until J-Gem paid a $3,300 "detention" fee. Having a deadline to meet in Louisiana, J-Gem could not afford a delay and paid the detention fee. At Schulz's instruction, the money was paid into Challenge Transportation's account.

The printed lease form states it is a single trip, 30-day lease. The lease lists Barshu, Inc. as the owner of the leased trucks; Challenge Transportation, Inc.'s name does not appear on the lease. At trial, appellant Barney Schulz testified that he was the president of both Challenge Transportation, Inc. and Barshu, Inc., that the companies have the same officers, some of the same stockholders, and share offices and phones, and that he owns 97% of Challenge Transportation, Inc.'s stock. Challenge's sole asset was its Interstate Commerce Commission permit. Barshu, Inc. owned the vehicles leased to J-Gem. Shulz testified he instructed J-Gem to pay the $3,300 detention fee to Challenge's account even though no agreement existed between Challenge and J-Gem.

In the first point of error, appellant claims the court erred in rendering judgment for J-Gem because J-Gem failed to plead and prove it sent a written demand letter thirty days before filing suit as required by section 17.50A, Tex.Bus. & Com.Code Ann.

Appellants did not specially except to appellee's pleadings for failure to plead appellee gave the 17.50A notice. Appellants did not in any way bring to the trial court's attention the failure of appellee to either plead or prove appellee gave the required notice. For this reason appellants have waived and...