L & M-Surco Mfg., Inc. v. Winn Tile Co., M-SURCO

• Decision Date: 19 April 1979
• Docket Number: No. 1190,M-SURCO,1190
• Citation: 580 S.W.2d 920
• Parties: L &MANUFACTURING, INC., Appellant, v. WINN TILE COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 920

580 S.W.2d 920

L & M-SURCO MANUFACTURING, INC., Appellant, v. WINN TILE COMPANY, Appellee.

No. 1190.

Court of Civil Appeals of Texas, Tyler.

April 19, 1979.

Rehearing Denied May 17, 1979.

Michael L. Dunn, Kenley, Boyland, Hawthorn, Starr & Coghlan, Longview, for appellant.

Leonard E. Davis, Potter, Guinn, Minton, Roberts & Ireland, Tyler, for appellee.

McKAY, Justice.

The opinion of this Court dated March 22, 1979, is withdrawn and the following substituted therefor.

This is a venue case. The court below overruled the plea of privilege of one of the defendants and this appeal has resulted.

Winn Tile Co., appellee, brought this action against L & M-Surco Manufacturing, Inc. (appellant), L & M Tile Products, Ltd. of Canada, and Monarch Tile Manufacturing, Inc. Appellee is an installer of ceramic tile; appellant and the two other defendants are engaged in the business of manufacturing, selling, and distributing ceramic tile products. Appellee alleged that, relying on the defendants' warranties regarding their surpoxy mortar compound and epoxy grout compound, it purchased the compounds and properly used them in installing ceramic tile in a swimming pool at Stephen F. Austin University at Nacogdoches, Texas, in the spring of 1975. Further, appellee alleged that shortly after installation, a glue-like substance began seeping from the joints between the tiles, spotting and smudging the entire pool area, and rendering the installation unacceptable and worthless. The mortar and grout compounds, according to the petition, were defective, unfit for use, and failed to conform to the warranties made by the defendants. Appellee averred further that, after considerable effort to resolve the problem, it became necessary for it to remove the tile and the bedding compound and replace them, to its damage in the sum of $42,355.28.

Appellee thus alleged a breach of express and implied warranties by the defendants. It also asserts a cause of action for violation of the Deceptive Trade Practices and Consumer Protection Act, Tex.Bus. & Comm.Code Ann. sec. 17.41 et seq. (hereinafter "DTPA" or the "Act") in that defendants allegedly committed false, misleading, and deceptive acts and practices, their actions being allegedly unconscionable. Under the provisions of said Act, appellee sued for treble damages and attorney's fees.

In response, appellant asserted its plea of privilege, alleging that it was neither a resident of Smith County, the county in which the suit was instituted, nor did it have an agency or representative in said county, and further alleging that its residence was Dallas County. Moreover, appellant claimed there was no exception to exclusive venue in its county of residence provided by law and prayed for a transfer of the cause, as to it, to Dallas County. Appellant also filed its answer, consisting of a general denial, subject to its plea of privilege.

Appellee entered its controverting plea, alleging that its residence is Smith County and that appellant was and is doing business in Smith County. Appellee further states that two exceptions to exclusive venue in the county of appellant's residence are provided by law: (1) since this is an action for breach of warranty by a manufacturer, subdivision 31 of Article 1995, Tex.Rev.Civ.Stat.Ann., provides for venue in the county of suit; and (2) alternatively, the special venue provision of the DTPA allows venue in Smith County.

Following a hearing on appellant's plea of privilege, the trial court entered its order overruling said plea. Appellant thereupon duly perfected its appeal of that interlocutory order to this court, bringing two points of error. The substance of this appeal, as will be seen, is a question of the correct definitions of two terms. In its first point, appellant contends that the trial court erred in overruling its plea of privilege because appellee was not a "consumer" under the DTPA.

Section 17.56 of the DTPA contains its special venue provision. Inasmuch as this suit was filed prior to May 23, 1977, the effective date of the 1977 amendment to that section, we will be concerned with the section as it read before that date, which was as follows:

"Sec. 17.56. Venue

"An action brought under Section 17.50 or 17.51 of this subchapter may be commenced in the county in which the person against whom the suit is brought resides, has his principal place of business, or is doing business."

Section 17.50 provided, in part:

"Sec. 17.50. Relief for Consumers

"(a) A Consumer may maintain an action if he has been adversely affected by any of the following:

"(1) the use or employment by any person of an act or practice declared to be unlawful by Section 17.46 of this subchapter;

"(2) a failure by any person to comply with an express or implied warranty;

"(3) any unconscionable action or course of action by any person;

"(b) In a suit filed under this section, each Consumer who prevails may obtain:

"(1) three times the amount of actual damages plus court costs and attorneys' fees reasonable in relation to the amount of work expended . . . ." (Emphasis added.)

Section 17.46 provided and now provides, in part:

"Sec. 17.46. Deceptive Trade Practices Unlawful

"(a) False, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.

"(b) The term 'false, misleading, or deceptive acts or practices' includes, but is not limited to, the following acts:

"(5) representing that goods . . . have . . . characteristics, ingredients, uses, benefits, or quantities which they do not have . . .;

"(7) representing that goods or services are of a particular standard, quality, or grade . . . if they are of another . . . ."

These are the statutory provisions under which appellee sues, his allegations coming within sec. 17.50 provided that he is a "consumer" within the meaning of that term as used in sec. 17.50(a). That term is defined in sec. 17.45, Definitions. That section was originally passed, with the rest of the subchapter, in 1973; it was amended in 1975 and again in 1977. The purchase of the goods involved here occurred prior to the effective date (September 1, 1975) of the 1975 amendments. At the time of said purchase, the subsection read, " 'Consumer' means an Individual who seeks or acquires by purchase or lease, any goods or services." (Emphasis added.) In 1975, the words, "partnership or corporation" were added after the word "individual," and in 1977, the words "or governmental entity" were added. The term "individual" has not been defined in the act. It is not disputed that appellee "acquire(d) by purchase (the) goods" involved here. The point of contention between the parties is whether appellee, as a Corporation, came within the existing definition of "consumer," i. e., was the corporation an Individual ? We agree with appellant that it was not.

The basic rules of statutory interpretation are to seek diligently and enforce the intention of the Legislature in enacting the statute in question, said intention to be determined from the entire act and not from isolated portions thereof. Further, said intention controls over the language used, i. e., the intent rather than the strict meaning of the words used determines the interpretation to be given the statute. City of Mason v. West Texas Utilities Co., 150 Tex. 18, 237 S.W.2d 273, 278 (1951).

In order to determine the intention of the Legislature in defining the term "consumer" as "an individual," we look first to the remainder of the definitions section of the DTPA. The term "person" is there defined as "an individual, partnership, corporation, association, or other group, however organized." This definition is in the original act, and has not been amended. The use of both of the words "corporation" and "individual" in the definition of "person" indicates that the Legislature did not consider the latter to include the former. Thus, prior to the effective date of the 1975 amendments, the term "person" specifically included corporations while the term "consumer" did not. We agree with appellant that it is clear that the Legislature knew the difference between a term which included corporations and one which did not. Had the Legislature desired to include corporations and other business organizations in the term "consumer," it would have been a simple matter of defining that term as a "person" rather than as an "individual," or merely expressly including corporations in the term "consumer." We must presume that the Legislature, by using different terms, had different significations in mind, and used them advisedly.

Viewing the entire act as it existed at the time of the purchase of these goods, we feel that it was the original intention of the Legislature in enacting it to protect individual natural persons, as consumers, from the overreaching of others. We do not feel that the subsequent amendment of the term "consumer" to include business and even governmental entities should alter our conclusion as to the legislative intent with regard to the original enactment.

Significantly, appellee cites us to no case, and we have found none, involving a corporate plaintiff which was allowed to sue as a consumer for redress under the DTPA, wherein the cause of action arose during the period between that Act's original effective date (May 21, 1973) and the effective date of the 1975 amendment (September 1, 1975) giving to corporations and partnerships a right of action thereunder.

Appellee argues that to hold that corporations were not consumers prior to September 1, 1975, would violate the underlying purposes of the DTPA. Appellee, however, in contending that the purpose of the statute is "to penalize the wrongdoer," misstates the express purposes of the act which are "To protect consumers . . . And to provide . . . Procedures to secure such protection." Sec. 17.44, Tex.Bus. & Comm.Code Ann. (Emphasis added.) Our holding here does no violence to...