Case Information
*1 Reversed and Remanded and Opinion filed October 7, 2014.
In The
Fourteenth Court of Appeals NO. 14-13-01132-CV
JOHNNY COLLUMS AND TINA COLLUMS, Appellants V.
FORD MOTOR COMPANY, Appellee
On Appeal from the Co Civil Ct at Law No 4
Harris County, Texas Trial Court Cause No. 1007240 O P I N I O N
Appellants Johnny and Tina Collums appeal the trial court’s granting of summary judgment in favor of appellee Ford Motor Company on appellants’ Deceptive Trade Practices Act (DTPA) claims. The sole issue presented is whether the trial court erred in granting summary judgment on the ground that appellants are not “consumers” under the DTPA. Because we conclude appellants *2 are DTPA “consumers” as a matter of law, we reverse the trial court’s order granting summary judgment in favor of Ford and remand this cause for further proceedings consistent with this opinion.
I. F ACTUAL AND P ROCEDURAL B ACKGROUND
In 2008, Mr. Collums purchased a new Ford F-450 while working in Rock Springs, Wyoming. The truck originally had a 36,600-mile warranty. Ford later extended the warranty on the fuel system to 200,000 miles. While working in Williston, North Dakota in November of 2011, Mr. Collums noticed the truck was losing power and making irregular noises. He took the truck to Stockman Motor, Inc. d/b/a Select Ford Mercury, a dealership in Williston. Citing a “lack of maintenance,” Select Ford Mercury refused to honor the warranty and subsequently sent appellants a service invoice for the unrepaired truck totaling $5,208.31. According to appellants, the truck remained at the Williston dealership until September 2013, when the dealership returned the truck to appellants “in pieces.”
On January 5, 2012, appellants sued Ford and Select Ford Mercury in Harris County, Texas. Appellants alleged that Ford and Select Ford Mercury violated the DTPA by (1) committing a variety of deceptive practices from the DTPA “laundry list,” [2] (2) breaching express and implied warranties, [3] and (3) engaging in an unconscionable course of action. [4] Ford filed a motion for summary judgment, asserting only that appellants were not “consumers” under the DTPA. [5] Appellants *3 nonsuited their claims against Select Ford Mercury. The trial court granted Ford’s motion for summary judgment and ordered appellants take nothing. Appellants timely appealed.
II. S TANDARD OF R EVIEW
We review a summary judgment de novo
. Mann Frankfurt Stein & Lipp
Advisors, Inc. v. Fielding
, 289 S.W.3d 844, 848 (Tex. 2009). To prevail on a
traditional motion for summary judgment, a movant must establish “there is no
genuine issue as to any material fact and the moving party is entitled to judgment
as a matter of law.” Tex. R. Civ. P. 166a(c). If a defendant conclusively negates
one of the essential elements of a cause of action, then the defendant is entitled to
summary judgment as to that cause of action.
Randall’s Food Mkts., Inc. v.
Johnson
,
III.
D ISCUSSION
A plaintiff must prove his or her status as a consumer to prevail in an action
under the DTPA.
See
Tex. Bus. & Com. Code Ann. § 17.50 (West 2011);
Kennedy
served when appellate courts only consider those summary judgment issues contemplated and
ruled on by the trial court.”
State Farm Fire & Cas. Co. v. S.S.
, 858 S.W.2d 374, 382 (Tex.
1993);
see Olmstead v. Napoli
,
v. Sale
, 689 S.W.2d 890, 892–93 (Tex. 1985). The Texas Supreme Court has
recognized two requirements that a plaintiff must establish to qualify as a
consumer under the DTPA. First, the plaintiff must have sought or acquired goods
or services by purchase or lease.
Cameron v. Terrell & Garrett, Inc.
, 618 S.W.2d
535, 539 (Tex. 1981);
see
Tex. Bus. & Com. Code Ann. § 17.45(4) (West 2011).
Second, the goods or services sought or acquired by purchase or lease must form
the basis of the complaint.
Cameron
,
Appellants are consumers for DTPA purposes. Appellants purchased a Ford
truck with a 36,600-mile warranty. The warranty was extended to cover the fuel
system for 200,000 miles. The mechanical problems associated with the truck and
Ford’s refusal to honor the warranties form the basis of appellants’ complaint.
Therefore, appellants satisfy the recognized requirements necessary to establish
their “consumer” status under the DTPA.
Id.
at 539;
see, e.g.
,
Jim Stephenson
Motor Co., Inc. v. Amundson
,
Citing the DTPA definition of “trade” and “commerce,” Ford argues that to be considered a “consumer” under the DTPA, a plaintiff must also be a resident of Texas because the DTPA only applies to trade or commerce directly or indirectly affecting the people of Texas. Tex. Bus. & Com. Code Ann. § 17.45(6) (West 2011) (defining “trade” and “commerce”). According to Ford, because appellants’ *5 warranty was denied in North Dakota and because appellants resided in Oklahoma when they sued Ford, [6] appellants “are either North Dakota or Oklahoma consumers, not Texas consumers, and therefore lack the appropriate standing to make a claim under the [DTPA].” [7]
We reject Ford’s argument for two reasons. First, the plain language of the DTPA’s definition of “consumer” does not contain a residency requirement. See Tex. Bus. & Com. Code Ann. § 17.45(4) (defining “consumer” as “an individual . . . who seeks or acquires by purchase or lease[ ] any goods or services . . . .”); see also In re M.N. , 262 S.W.3d 799, 802 (Tex. 2008) (“We . . . presume the Legislature included each word in the statute for a purpose . . . and that words not included were purposefully omitted.” (internal citations omitted)). Second, Ford’s attempt to use the DTPA definition of “trade” and “commerce” to impose a residency requirement on the definition of “consumer” directly conflicts with Texas Supreme Court precedent:
[T]he scope of “trade” and “commerce” defines the acts that are illegal ; it does not purport to say who may maintain a private cause of action. . . . [I]t is the definition of consumer that delineates the class of persons that may maintain a private cause of action. . . . [T]he [section 17.44(a)] rule of liberal interpretation should not be applied in a manner that negates the statutory definition of the word “consumer.” . . . To read the [DTPA] in such a manner that “trade” and “commerce” define the class of persons who are consumers would constitute a *6 judicial deletion of section 17.45(4), which defines consumer in terms of a purchaser of “goods” and “services,” and not in connection with “trade” and “commerce.” This we cannot do.
Riverside Nat’l Bank v. Lewis , 603 S.W.2d 169, 173 (Tex. 1980) (emphases added). Ford’s reliance on the DTPA definition of “trade” and “commerce” to impose a residency requirement on the DTPA definition of “consumer” is therefore unavailing. We conclude that appellants did not have to establish their Texas residency in order to establish their status as DTPA consumers.
Accordingly, we hold that appellants are “consumers” under the DTPA as a matter of law. See Coinmach Corp. v. Aspenwood Apartment Corp. , 417 S.W.3d 909, 924–25 (Tex. 2013) (“[A] party’s status as a consumer is typically a question of law for the courts to decide.”); Rivera v. S. Green Ltd. Partnership , 208 S.W.3d 12, 21 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (plaintiff’s status as consumer is a question of law). The trial court erred when it granted summary judgment in favor of Ford based on the ground that plaintiffs were not “consumers” within the meaning of the DTPA. We sustain appellants’ sole issue on appeal.
IV C ONCLUSION
Appellants are consumers under the DTPA as a matter of law. The trial court erred in granting summary judgment in favor of Ford. We reverse the trial court’s summary judgment in favor of Ford and remand this cause for proceedings consistent with this opinion.
/s/ Marc W. Brown Justice
Panel consists of Chief Justice Frost and Justices Donovan and Brown.
Notes
[1] Tex. Bus. & Com. Code Ann. ch. 17 (West 2011).
[2] id. §§ 17.46(b)(5), (b)(7), (b)(12), (b)(20), (b)(24) (West 2011).
[3] See id. § 17.50(a)(2) (West 2011).
[4] See id. § 17.50(a)(3) (West 2011).
[5] We decline to address Ford’s contention on appeal that application of the Texas DTPA would violate “principles of extraterritorialism” implicating “significant and far-reaching constitutional concerns.” “Our system of appellate review, as well as judicial economy, is better
[6] Appellants contest Ford’s averments regarding their residency.
[7] We interpret Ford’s reference to “standing” as part of its challenge to appellants’ status as consumers. Even if we were to analyze standing from a subject matter jurisdiction perspective, it is clear that appellants satisfy the general test for standing. Tex. Ass’n. of Bus. v. Tex. Air Control Bd. ,852 S.W.2d 440 , 446 (Tex. 1993) (“The general test for standing in Texas requires that there (a) shall be a real controversy between the parties, which (b) will be actually determined by the judicial [relief] sought.” (internal quotations omitted)); see also Lexmark Int’l, Inc. v. Static Control Components, Inc. , — U.S. —,134 S. Ct. 1377 , 1387–88 (2014) (question of whether a plaintiff has a statutory cause of action is not one of Article III “standing” but of statutory interpretation).