Gill v. Boyd Distribution Center

• Decision Date: 19 December 2001
• Docket Number: No. 06-01-00107-CV.,06-01-00107-CV.
• Citation: 64 S.W.3d 601
• Parties: Anthony E. GILL, Appellant, v. BOYD DISTRIBUTION CENTER, et al., Appellees.
• Court: Texas Court of Appeals

64 S.W.3d 601

Anthony E. GILL, Appellant, v. BOYD DISTRIBUTION CENTER, et al., Appellees.

No. 06-01-00107-CV.

Court of Appeals of Texas, Texarkana.

Submitted July 31, 2001.

Decided December 19, 2001.

Anthony E. Gill, Beeville, pro se.

Before CORNELIUS, C.J., GRANT and ROSS, JJ.

OPINION

Opinion by Justice GRANT.

Anthony E. Gill, an inmate in the custody of the State of Texas, appeals the order of the trial court dismissing his pro se petition against Boyd Distribution Center and Ross Products Division, Abbott Laboratories. Gill's petition was filed May 17, 2001, and was dismissed by the trial court on May 21, 2001, before service of process on the named defendants and without a fact-finding hearing.

Although Tex. Civ. Prac. & Rem. Code Ann. § 14.003(b)(1)-(3) (Vernon Supp. 2002) provides multiple grounds for dismissal, where there has been no fact-finding hearing, the court may only dismiss the inmate's claim if it lacked an arguable basis in law. Johnson v. Franco, 893 S.W.2d 302, 303 (Tex.App.-Houston [1st Dist.] 1995, writ dism'd w.o.j.). Because this is a question of law, the standard of review is de novo, as opposed to abuse of discretion. See In re Humphreys, 880 S.W.2d 402 (Tex.1994).

To have no arguable basis in law, a claim must be based on "an indisputably meritless legal theory," Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989), or the facts alleged must rise to the level of the irrational or wholly incredible, Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992). "An in forma pauperis complaint may not be dismissed, however, simply because the court finds the plaintiff's allegations unlikely." Denton, 504 U.S. at 33, 112 S.Ct. 1728. Therefore, for the claim to have no basis in law, the facts as pleaded must not comprise a cause of action.

The elements of a Deceptive Trade Practices Act (DTPA) claim are (1) the plaintiff is a consumer, a person who seeks or acquires goods or services by purchase or lease, (2) the defendant engaged in false, misleading, or deceptive acts, and (3) the act constituted a producing cause of the consumer's damages. TEX. BUS. & COM.CODE ANN. §§ 17.45(4), 17.50(a) (Vernon Supp.2002); Larsen v. Carlene Langford & Assocs., Inc., 41 S.W.3d 245, 250 (Tex.App.-Waco 2001, pet. denied). While there is no requirement of privity, the defendant's wrongful conduct must be committed in connection with the consumer's transaction, must constitute a producing cause of economic damages or damages for mental anguish, and must fall under Section 17.50 of the DTPA. See TEX. BUS. & COM.CODE ANN. § 17.50 (Vernon Supp.2002). Where a plaintiff relies on Section 17.50(a)(1), the plaintiff must also prove that the consumer relied on the defendant's wrongful conduct to the consumer's detriment. Id. Gill's claims based on general misrepresentations in subsections 17.46(b)(5) and (7) must allege that the defendant made a representation of fact regarding the goods or services that is inaccurate or false. General or indefinite statements may support recovery under the DTPA. See Humble Nat'l Bank v. DCV, Inc., 933 S.W.2d 224, 230 (Tex. App.—Houston [14th Dist.] 1996, writ denied).

Gill's claim based on failure to disclose under Section 17.46(b)(24) must allege that (1) the defendant knew information regarding the goods or services; (2) the information was not disclosed; (3) there was an intent to induce the consumer to enter into the transaction through the failure to disclose; and (4) the consumer would not have entered into the transaction on the same terms had the information been disclosed. See Tex. Bus. & Com. Code Ann. § 17.46(b)(24) (Vernon Supp. 2002). A seller could not be held liable for failing to disclose information about which the buyer has actual notice, as such information could not be a producing cause of damages. See Frizzell v. Cook, 790 S.W.2d 41, 45 (Tex.App.-San Antonio 1990, writ denied).

If the trier of fact finds that the defendant committed the wrongful act knowing that the act was false, deceptive, misleading, or unfair, the consumer may recover damages for mental anguish in addition to economic damages. See TEX. BUS. & COM.CODE ANN. § 17.50(b)(1). There is no requirement that the consumer be awarded economic damages or that there be accompanying physical injury for the consumer to recover for mental anguish, see Latham v. Castillo, 972 S.W.2d 66 (Tex.1998), but the consumer will only be compensated for mental anguish rising above mere disappointment, anger, resentment, or embarrassment to cause a substantial disruption in daily routine or a high degree of mental pain and distress. See Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex.1995).

Gill also pleads a cause of action against both Abbott and Boyd for constructive fraud. To recover on an action for fraud, the party must prove that: (1) a material representation was made; (2) it was false; (3) when the speaker made the representation, he knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the speaker made it with the intention that it should be acted on by the party; (5) the party acted in reliance on it; and (6) the party thereby suffered injury. Larsen, 41 S.W.3d at 249.

Gill's petition contained the following allegations. Between February 10, 2000 and March 10, 2000, Gill purchased five cans of Ensure from Boyd at the Retrieve unit commissary. The Ensure purchased was manufactured by Abbott and introduced or delivered for introduction into commerce by Boyd. After purchasing two cans on March 10, 2000, Gill...