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

> Texas Supreme Court · January 21, 1987 · 30 Tex. Sup. Ct. J. 153

URL: https://www.frixlaw.com/law-library/cases/9772428

## Case

- **Full name:** SHERMAN SIMON ENTERPRISES, INC., Petitioner, v. LORAC SERVICE CORPORATION, a Wholly Owned Division of Raytheon Corporation, Respondent
- **Court:** Texas Supreme Court
- **Decided:** January 21, 1987
- **Citations:** 30 Tex. Sup. Ct. J. 153; 724 S.W.2d 13; 1987 Tex. LEXIS 281
- **Precedential status:** Published
- **Opinion:** Concurrence by Gonzalez
- **Judges:** Kilgarlin, Gonzalez
- **Cited by:** 44 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9772428

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9772428. Public record. Not legal advice.