Lochabay v. Southwestern Bell Media, Inc., 3-91-063-CV

• Decision Date: 11 March 1992
• Docket Number: No. 3-91-063-CV,3-91-063-CV
• Citation: 828 S.W.2d 167
• Parties: David LOCHABAY, Appellant, v. SOUTHWESTERN BELL MEDIA, INC., Appellee.
• Court: Texas Court of Appeals

Page 167

828 S.W.2d 167

David LOCHABAY, Appellant, v. SOUTHWESTERN BELL MEDIA, INC., Appellee.

No. 3-91-063-CV.

Court of Appeals of Texas Austin.

March 11, 1992.

Carroll Clarke Cook, Jr., Austin, for appellant.

Elizabeth G. Bloch, Hilgers & Watkins, P.C., Austin, for appellee.

Before POWERS, JONES and SMITH, JJ.

POWERS, Justice.

Southwestern Bell Media sued David Lochabay to recover a debt due and owing under their contract. Lochabay counterclaimed, alleging against Bell a statutory cause of action under the Deceptive Trade Practices-Consumer Protection Act (DTPA), Tex.Bus. & Com.Code Ann. §§ 17.41-.63 (1987 & Supp.1992). Lochabay appeals from a summary judgment that awards Bell recovery on its claim while ordering that Lochabay take nothing by his claim against Bell. We will affirm the judgment.

THE CONTROVERSY

Bell publishes telephone listings and advertisements in the "yellow pages" it produces and distributes as part of the Austin telephone directory. In 1988, Bell contracted with David Lochabay, an Austin attorney, to publish in the "yellow pages" his advertisement for his services as an attorney. Lochabay furnished to Bell a copy of the advertisement he wished to publish. No Bell employee assisted Lochabay or suggested improvements in the advertisement.

Bell published Lochabay's half-page advertisement in the directory, as it was obligated to do by the contract. Lochabay made an initial payment of $2280.63, as the contract required. The contract also required him to make several monthly payments of $1600 each, but he made no further payments after the initial payment.

In November 1989, Bell sued Lochabay for the balance owing ($18,707.37), plus interest, costs and attorney's fees. Lochabay interposed a general denial and a counterclaim, alleging that Bell had committed a deceptive trade practice by failing to inform him of defects in the design and layout of his advertisement. See DTPA §§ 17.41-.63.

Bell moved for summary judgment on both its claim against Lochabay and Lochabay's counterclaim against Bell. The trial court sustained Bell's motion for summary judgment. The court ordered that Bell recover $22,237.56, which represented the principal amount owing under the contract, prejudgment interest and attorney's fees. The court also awarded Bell postjudgment interest. Finally, the court sustained Bell's motion for summary judgment that Lochabay take nothing by his counterclaim. ¹ Lochabay appeals, complaining the trial court erroneously sustained Bell's motion for summary judgment.

POINTS OF ERROR

Lochabay assigns two points of error. Both rest on the same theory: (1) Lochabay, inexperienced in the art of advertising, designed his own advertisement; (2) the advertisement contained defects rendering it useless for attracting business; (3) Bell knew the advertisement was defective; and (4) Lochabay would not have entered into the agreement had he known of the defect. Lochabay urges the theory both as a defense to Bell's claim and as a basis for recovering on his counterclaim. Lochabay does not assail on any other theory Bell's recovery on its contract claim.

In his first point of error, Lochabay cites section 17.46(b)(23) of the DTPA. That section provides that a false, misleading or deceptive act includes "the failure to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed." DTPA § 17.46(b)(23). Lochabay asserts that Bell violated section 17.46(b)(23) by failing to warn him that his advertisement would likely be ineffective.

In his second point of error, Lochabay contends the trial court erred because

Bell's conduct was an unconscionable act prohibited by the DTPA. See DTPA § 17.45(5)(A), (B). Lochabay argues that his advertisement produced virtually no business for him, creating a gross disparity between the value he received and the amount he agreed to pay under the contract. Therefore, he contends, Bell acted unconscionably in failing to inform him that his advertisement was defective.

DISCUSSION AND HOLDINGS

Lochabay apparently does not contest the granting of summary judgment on Bell's contract claim; instead, Lochabay relies on his counterclaim to defeat Bell's right to recover. Therefore, we will treat Bell as the defendant movant for the purposes of our analysis.

A moving party is entitled to summary judgment when "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or in an answer or any other response." Tex.R.Civ.P.Ann. 166a(c) (Supp.1992). A defendant may obtain summary judgment by establishing as a matter of law that at least one element of the plaintiff's cause of action cannot be sustained, as in the case where there is no genuine issue of fact as to that element. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970); Dubow v. Dragon, 746 S.W.2d 857, 860 (Tex.App.1988, no writ).

A summary judgment may be upheld on appeal on only those grounds expressly set out in the motion for summary judgment. Tex.R.Civ.P.Ann. 166a(c) (Supp.1992); Brooks Fashion Stores, Inc. v. Northpark Nat'l Bank, 689 S.W.2d 937, 941 (Tex.App.1985, no writ). In its motion for summary judgment, Bell averred, "[Lochabay's] counterclaim citing [Bell's] use of deceptive trade practices is wholly unsupported by legal authority. [Lochabay] claims a breach of [Bell's] alleged duty to advise and warn as to the advertisement's effectiveness; however, no such implied duty exists under Texas law." We understand Bell to argue in the first quoted sentence that the DTPA does not provide a cause of action and remedy for Lochabay. ² In the second quoted sentence, Bell argues that it had no duty to express an opinion about the advertisement's effectiveness. The trial court's order granting summary judgment did not specify the ground or grounds relied on for the ruling; therefore, we will affirm the summary judgment if any of the theories advanced are meritorious. Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex.1989).

A. DTPA CAUSE OF ACTION

A plaintiff's rights under the DTPA arise solely from statute. When a "cause of action and remedy for its enforcement are derived not from the common law but from [a] statute, the statutory provisions are mandatory and exclusive, and must be complied with in all respects or the action is not maintainable." Mingus v. Wadley, 285 S.W. 1084, 1087 (Tex.1926). To prevail under the DTPA, a plaintiff must establish all of the elements set forth in section 17.50: (1) the plaintiff must be a consumer; (2) the act complained of must be a producing cause of actual damages; and (3) the act must be one of those prohibited by section 17.50(a)(1-4). ³ We do not believe the DTPA imposes any express or implied duty on Bell unless and until Lochabay establishes prima facie that he was a consumer. See DTPA § 17.50(a); Riverside Nat'l Bank v. Lewis, 603 S.W.2d 169, 173 (Tex.1980); see also Plaza Nat'l Bank v. Walker, 767 S.W.2d 276, 278 (Tex.App.1989, writ denied) (the plaintiff has the burden to establish his consumer status).

Section 17.45(4) defines "consumer" as "an individual ... who seeks or acquires by purchase or lease, any goods or services." A plaintiff must meet two tests to qualify as a consumer: (1) the person 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. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 539 (Tex.1981). If either requirement is lacking, the aggrieved party must look to the common law or to some other statutory cause of action for relief. Fielder v. Abel, 680 S.W.2d 655, 657 (Tex.App.1984, no writ).

The record demonstrates as a matter of law that Lochabay cannot meet the second test--that the service he purchased must form the basis of his complaint. See Southwestern Bell Tel. Co. v. FDP Corp., 811 S.W.2d 572, 575 (Tex.1991) (a sale of advertising space is primarily the provision of a service rather than of goods). Under the record, Lochabay sought and purchased nothing from Bell except one service--that of publishing his advertisement. Lochabay does not complain at all regarding this service. He complains instead of a service that Bell never provided nor undertook to provide, and a service Lochabay never sought or purchased: advice respecting the quality of the advertisement that Lochabay delivered to Bell for publication.

In his affidavit opposing Bell's motion for summary judgment, Lochabay stated that he "was expecting and would have been receptive to any suggestions or recommendations" the Bell representative might have had about the advertisement design. He did not state, however, that he ever requested advice or assistance. Even though consideration is not necessary for one to be a consumer, the customer must initiate in good faith the purchasing process. Martin v. Lou Poliquin Enters., Inc., 696 S.W.2d 180, 184 (Tex.App.1985, writ ref'd n.r.e.). We do not believe Lochabay's silent wish for assistance was sufficient to initiate the purchasing process; and the silent wish does not, therefore, rise to the level of intent to acquire services necessary to create a DTPA cause of action.

A number of Texas courts have conferred consumer status on plaintiffs when the activity complained of was collateral to the good or service purchased. These cases, however, generally involve the acquisition of an intangible item, such as a loan, a bank account, or a franchise agreement. ⁴ Although the DTPA does not cover a purchase of an intangible item, the plaintiff can bring the acquisition within the DTPA by alleging he or she would not have sought or purchased the intangible items but for the collateral services...