D/FW Commercial Roofing Co., Inc. v. Mehra, 05-91-01702-CV
| Decision Date | 06 April 1993 |
| Docket Number | No. 05-91-01702-CV,05-91-01702-CV |
| Citation | 854 S.W.2d 182 |
| Parties | D/FW COMMERCIAL ROOFING CO., INC., Appellant, v. Suresh MEHRA, Individually and d/b/a St. Tropez Ltd., St. Tropez, Ltd., Inc., St. Tropez Fashions, Inc., Stonebridge Investments, Inc., and Stonebridge Management Co., Appellees. |
| Court | Texas Court of Appeals |
Kevin J. Cook, Dallas, for appellant.
James P. Reid, Ellen Ossenfort, Jeffrey S. Lynch, Dallas, for appellees.
Before THOMAS, MALONEY and KAPLAN 1, JJ.
D/FW Commercial Roofing Co., Inc. appeals from an adverse judgment rendered in favor of Suresh Mehra, individually, and d/b/a St. Tropez, Ltd., St. Tropez, Ltd., Inc., and St. Tropez Fashions, Inc. 2 In two points of error, appellant complains that the trial court erred in (1) allowing recovery under the Deceptive Trade Practices-Consumer Protection Act 3 (DTPA or the Act) because appellees are not consumers and (2) awarding recovery for lost profits. In a single cross-point, appellees assert that the trial court erred in calculating the amount of their award of attorneys' fees. We overrule all points of error and the cross-point. Accordingly, we affirm the trial court's judgment.
Appellees are in the wholesale business of selling women's clothing and fabrics. At the time this controversy arose, their primary trade involved the importation of designer merchandise from India. During this period, most of appellees' inventory was stored in boxes in leased warehouse space. As retail outlets placed orders, the items were removed from the warehouse. Appellees leased warehouse space from Stonebridge.
The roof periodically leaked causing Stonebridge to incur expenses for repairs. In the summer of 1984, Stonebridge decided to replace a portion of the roof, which included a section that covered appellees' leased premises. Stonebridge hired appellant to perform the work. No one notified appellees that a portion of the roof covering their inventory would be removed. After the roof was removed, a major rainstorm ensued. As a result, appellees' space was flooded. A substantial portion of appellees' inventory was damaged or destroyed.
Appellees sued Stonebridge and appellant under various theories, which included claims of negligence and DTPA violations. The jury found in favor of Stonebridge on all causes of action. As to the negligence claim, the jury found that both appellant and appellees were negligent. In apportioning the percentage of negligence, the jury found 80 percent attributable to appellant and 20 percent attributable to appellees. Under their negligence cause of action, appellees' recovery was approximately $530,000. The jury also found that appellant had violated a provision of the Act. Appellees' recovery for the DTPA violation was approximately $431,000. As a result of their recovery under the Act, appellees were also entitled to recover attorneys' fees of approximately $171,000. See § 17.50(d). Appellees elected to recover under their DTPA claim.
In its first point of error, appellant asserts that the trial court erred in awarding any recovery under the Act because appellees were not consumers. As a basis for this conclusion, appellant argues that (a) there was no privity between the parties and (b) appellees were merely incidental beneficiaries under this transaction. We disagree.
Appellees brought this action under section 17.50(a), which provides:
(a) A consumer may maintain an action where any of the following constitute a producing cause of actual damages:
(1) the use or employment by any person of a false, misleading, or deceptive act or practice that is specifically enumerated in a subdivision of Subsection (b) of Section 17.46 of this subchapter;
(2) breach of an express or implied warranty;
(3) any unconscionable action or course of action by any person; or
(4) the use or employment by any person of an act or practice in violation of Article 21.21, Texas Insurance Code, as amended, or rules or regulations issued by the State Board of Insurance under Article 21.21, Texas Insurance Code, as amended.
§ 17.50(a). Appellees' recovery was on the basis that appellant breached its implied warranty to perform the roofing services in a good and workmanlike manner. § 17.50(a)(2).
In order to maintain their DTPA action, appellees had to establish that they were consumers as that term is defined in section 17.45(4). Under the Act, a consumer is "an individual, partnership, corporation ... who seeks or acquires by purchase or lease, any goods or services...." § 17.45(4). The Act does not require the same person to both acquire and purchase the goods. See Kennedy v. Sale, 689 S.W.2d 890 (Tex.1985) ().
The general rule is that there is no "privity" requirement under the Act. The genesis of this rule was the Texas Supreme Court's holding in Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535 (Tex.1981). In Cameron, the purchasers of a home brought an action against the seller's real estate agent based on misrepresentations concerning the square footage of the home. The court refused to impose any type of "privity requirement" into the definition of consumer, stating:
We find no indication in the definition of consumer in Section 17.45(4), or any other provision of the Act, that the legislature intended to restrict [the Act's] application only to deceptive trade practices committed by persons who furnish goods or services on which the complaint is based. Nor do we find any indication to restrict its application by any other similar privity requirement.
Cameron, 618 S.W.2d at 540-41.
Following Cameron, the supreme court addressed the issue again under various factual situations and again stated that privity between a plaintiff and defendant is not a consideration in deciding a plaintiff's status as a consumer under the Act. See Flenniken v. Longview Bank & Trust Co., 661 S.W.2d 705, 707 (Tex.1983); Gupta v. Ritter Homes, Inc., 646 S.W.2d 168, 169 (Tex.1983); Stagner v. Friendswood Dev. Co., 620 S.W.2d 103, 103 (Tex.1981) (per curiam). Thus, the rule appears to be that standing as a consumer is established not by a plaintiff's contractual relationship with the defendant but rather by the plaintiff's relationship to the transaction. See Flenniken, 661 S.W.2d at 707; Cameron, 618 S.W.2d at 539.
Section 17.45(4) describes the class of persons entitled to bring suit under section 17.50(a); it does not define the class of persons subject to liability. Flenniken, 661 S.W.2d at 706. The range of defendants who may be sued is limited by the exemptions provided in section 17.49. 4 As a practical matter, once a plaintiff has established that he or she is a consumer, the plaintiff may sue almost anyone. See RICHARD M. ALDERMAN, THE TEXAS DECEPTIVE TRADE PRACTICES ACT ch. 3 (1991); 2 J. HADLEY EDGAR, JR. & JAMES B. SALES, TEXAS TORTS AND REMEDIES § 43.03[b] (1992). A defendant becomes liable by engaging in prohibited conduct that adversely affects a consumer in the context of the transaction. See Flenniken, 661 S.W.2d at 707.
Appellant acknowledges that "there is a legion of cases indicating that privity is not required under the DTPA." However, appellant argues that the cases have no application in this instance. First, appellant points out that the violations in Flenniken and Cameron involved different subsections than are in issue in this case. Flenniken, 661 S.W.2d at 707 (); Cameron, 618 S.W.2d at 541 (). Appellant asserts that the subsequent cases have merely followed Flenniken and Cameron without actually analyzing or focusing upon the particular language of the applicable subsection.
Appellant maintains that there is a privity requirement under section 17.50(a)(2) because its language is fundamentally different from the other subsections. The thrust of appellant's argument is that the exclusion of the words "any person" from the breach of warranty provision, while including the phrase in the other three subsections, demonstrates the legislature's intent that the DTPA remedies for breach of warranty are limited to those persons in privity with the plaintiff. We disagree with appellant's restricted approach.
In examining the language of Cameron and Flenniken, we conclude that there is nothing to indicate that their holdings should be limited to the particular subsections in dispute. On the contrary, the court in Cameron did not focus so much upon the language of the subsection, but rather it examined the interaction of the provisions of the entire Act. Cameron, 618 S.W.2d at 540. In attempting to ascertain the legislature's intent, the Cameron court stated that "we must look at the Act as a whole, and not its isolated provisions, keeping in mind 'the old law, the evil and the remedy.' " Cameron, 618 S.W.2d at 540 (quoting Woods v. Littleton, 554 S.W.2d 662, 665 (Tex.1977)).
We also note that the issue of privity relative to section 17.50(a)(2) has been addressed in a few appellate decisions and the rulings are adverse to appellant's argument. 5 See Gupta, 646 S.W.2d at 169 (); National Bugmobiles, Inc. v. Jobi Props., 773 S.W.2d 616, 621-22 (Tex.App.--Corpus Christi 1989, writ denied) (); Superior Trucks, Inc. v. Allen, 664 S.W.2d 136, 148 (Tex.App.--Houston [1st Dist.] 1983, writ ref'd n.r.e.) (nonowner driver of truck that was sought for purposes of hauling materials was consumer under the Act); Waters v. Hollie, 642...
To continue reading
Request your trial
-
Price v. Short
...York Underwriters Ins. Co. v. State Farm Mut. Auto. Ins. Co., 856 S.W.2d 194, 204 (Tex.App.--Dallas 1993, no writ); D/FW Commercial Roofing Co. v. Mehra, 854 S.W.2d 182, 189 (Tex.App.--Dallas 1993, no writ). We will, however, address appellant's arguments in the interest of Appellant argues......
-
Bass v. Hendrix
...F.2d 1420, 1426 (5th Cir.1992); McDuffie v. Blassingame, 883 S.W.2d 329, 333 (Tex.App. — Amarillo 1994, no writ); D/FW Commercial Roofing Co. v. Mehra, 854 S.W.2d 182, 185 (Tex.App. — Dallas 1993, no writ); Allied Towing Serv. v. Mitchell, 833 S.W.2d 577, 581 (Tex.App. — Dallas 1992). Thus,......
-
Dallas Cent. Appraisal Dist. v. Tech Data Corp.
...P. 74(f). Failure to discuss relevant facts and authority results in a waiver of the points on appeal. See D/FW Commercial Roofing Co. v. Mehra, 854 S.W.2d 182, 189 (Tex.App.--Dallas 1993, no writ); Jones v. Texas Pac. Indem. Co., 853 S.W.2d 791, 796 (Tex.App.--Dallas 1993, no 2. Applicatio......
-
City of McAllen v. Casso
...amount of the loss with reasonable certainty. Holt Atherton Indus.,Inc. v. Heine, 835 S.W.2d 80, 84 (Tex. 1992); D/FW Commercial Roofing Co. v. Mehra, 854 S.W.2d 182, 187 (Tex. App.—Dallas 1993, no writ). The evidence relative to the profits must not be uncertain or speculative. Mehra, 854 ......
-
Table of Cases
...— D — D.S.A., Inc. v. Hillsboro Indep. Sch. Dist., 973 S.W. 2d 662 (Tex. 1998), §10.05 D/FW Commercial Roofing Co., Inc. v. Mehra , 854 S.W.2d 182 (Tex. App.—Dallas 1993, no writ), §1.02.4.2 Dailey v. Wheat , 681 S.W.2d 747 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.), §8.10 Dal......
-
Initial Client Contacts (Plaintiff)
...who paid for its release involuntarily acquired services and was, therefore, a consumer); D/FW Commercial Roofing Co., Inc. v. Mehra , 854 S.W.2d 182 (Tex. App.—Dallas 1993, no writ) (tenant was consumer of roof repairs purchased by landlord). A third party beneficiary of a contract may qua......
-
CHAPTER 4 - 4-3 Discovery's Scope
...op.) (holding individual tax returns were relevant to a showing that net profits were distributed); D/FW Comm. Roofing Co. v. Mehra, 854 S.W.2d 182, 187-88 (Tex. App.—Dallas 1993, no writ) (holding that there was factually sufficient evidence of lost profits when tax returns were part of th......