stating that the key principle to determining "consumer" status in DTPA cases involving intangible items is whether the purchased goods or services are an objective of the transaction or merely incidental to it
How later courts described this case
- stating that the key principle to determining "consumer" status in DTPA cases involving intangible items is whether the purchased goods or services are an objective of the transaction or merely incidental to it
Written by the judges who cited it.
The opinion
ON PETITION FOR REHEARING
PER CURIAM:
IT IS ORDERED that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby GRANTED.
The district court entered judgment for the FDIC as receiver for the First National Bank of Midland. We reversed the district court’s judgment as to Southwest Bank, including First National in that order, and remanded the case for further proceedings consistent with our opinion. The FDIC was not a party to the appeal. We amend our judgment so that it will properly reflect that the trial court’s judgment that Munn take nothing from the FDIC is affirmed, it not being at issue on appeal.
Therefore the last paragraph of our opinion is amended to read as follows:
In summary, we hold that the district court should have submitted to the jury disputed facts about whether certain alleged services were objectives of the transaction. Thus, we remand for a new trial on the DTPA claims. Because the fraud claims against Southwest Bank are so closely related to the DTPA claims and because of conflicts in the special verdict, we also remand those fraud claims for a new trial. Our holding leaves unresolved Munn’s claims against Golden and Jones for damages. The district court is in the best position to reconsider its decision limiting recovery to rescission after the verdict in the new trial on remand. The judgment against Southwest Bank is REVERSED, and the cause is REMANDED to the district court for further proceedings consistent with this opinion.