Opinion

Sherman Simon Enterprises, Inc. v. Lorac Service Corp.

  • 30 Tex. Sup. Ct. J. 153
  • 724 S.W.2d 13
  • 1987 Tex. LEXIS 281
Court
Texas Supreme Court
Filed
Jan 21, 1987
Status
Published
Author
Gonzalez
On the bench
Kilgarlin, Gonzalez
Cited by
44 cases
Authority
More cited than 10.7%

recognizing the two requirements to qualify as a consumer under the DTPA as (1) seeking or acquiring by purchase or lease (2) any goods or services

How later courts described this case

  • recognizing the two requirements to qualify as a consumer under the DTPA as (1) seeking or acquiring by purchase or lease (2) any goods or services
  • plaintiff company sued car rental agency for misrepresentation in agreement signed by plaintiff's employee/agent
  • despite plaintiff's consumer status, it failed to recover because defendant had made no misrepresentation
  • “ ‘Services’ means work, labor, or service purchased or leased for use-”

Written by the judges who cited it.

The opinion

GONZALEZ, Justice,

concurring.

I concur with the result in this cause because the record contains no evidence of a false, misleading or deceptive act or practice. However, I disagree that Respondents have standing to sue under the DTPA.

Only consumers may recover under the DTPA. The Act defines “consumer” as an “individual ... who seeks or acquires by purchase or lease, any goods or services.” Tex.Bus. & Com.Code Ann. § 17.45(4) (Vernon 1982).

A two-prong test must be satisfied in order to qualify as a “consumer:”

(1) the plaintiff must have sought or acquired goods or services by purchase or lease; and

(2) the goods or services purchased or leased must form the basis of the complaint.

A plaintiff failing to establish either of these two requirements does not have standing and is relegated to pursue other remedies. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 539 (Tex.1981).

The court glosses over the second prong of the test and concludes it has been satisfied. If this was a football game, the court would be guilty of falling for the quarterback fake and tackling the fullback — only to discover that the quarterback had kept the ball and scored on a bootleg play. The “goods or services” here are the leased vehicle and the lease agreement. There was no complaint about the vehicle. Furthermore, the lease agreement does not impose a duty on Petitioner to defend a lawsuit arising out of the use of the vehicle, nor to indemnify or hold Respondent harmless for any damages relating to the transaction. It merely represented that Petitioner would provide liability coverage and this was done. The fact that National *17 Union refused to defend Respondent is not Petitioner’s problem. Respondent had a cause of action against National Union for failure to defend. This lawsuit was brought for the wrong cause of action against the wrong party.

For the above reasons, I concur with the result.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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