Sherman Electronics v. Zenith Electronics ( 1997 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 96-50426
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SHERMAN ELECTRONICS SUPPLY INC,
Plaintiff - Appellant,
versus
ZENITH ELECTRONICS,
Defendant - Appellee.
Appeal from the United States District Court
For the Western District of Texas
(SA-94-CV-557)
January 14, 1997
Before HIGGINBOTHAM, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Sherman appeals the district court’s grant of summary judgment
dismissing its claim under the Texas Deceptive Trade Practices Act,
Tex. Bus. & Comm. Code § 17.46 (“DTPA”). We review a district
court’s grant of summary judgment de novo. Doddy v. Oxy USA, Inc.,
101 F.3d 448, 460 (5th Cir. 1996); Fed. R. Civ. P. 56(c). We agree
with the district court that Sherman did not have consumer standing
under the DTPA. To qualify as a “consumer,” the claimant must (1)
have sought or acquired goods or services by purchase or lease, and
*
Pursuant to Local Rule 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
(2) show that these same goods or services form the basis of the
DTPA complaint. Meineke Discount Muffler v. Jaynes, 999 F.2d 120,
125 (5th Cir. 1993); Tex. Bus. & Comm. Code §§ 17.45(4) & (10). We
find that Zenith’s alleged promise to prevent “bootlegging” of
parts into Sherman’s service area was neither a good nor a service
under the statute.
Neither party suggests that Zenith’s alleged obligation to
stop bootlegging was a “good” under the DTPA. The question in this
appeal is whether the obligation, if it exists, counts as a
service. The DTPA defines “services” as “work, labor, or service
purchased or leased for use, including services furnished in
connection with the sale or repair of goods.” Tex. Bus. & Comm.
Code § 17.45(2). Sherman’s annual contracts with Zenith, which
included an incorporation clause and a written modification
provision, never mentioned the alleged duty to police bootlegging.
Accordingly, we find that the purchase price for the television
parts did not include a purchase of the alleged obligation.
Although Sherman purchased parts from Zenith, these goods did not
furnish the basis of its DTPA claim. Therefore Sherman does not
meet the consumer standing requirements of the DTPA. See Americom
Distrib. Corp. v. ACS Communications, Inc., 990 F. 2d 223, 227 (5th
Cir.) (DTPA complaint dismissed where plaintiff purchased goods,
but plaintiff’s complaint was based on suspension of
distributorship, not fault in goods), cert. denied, 510 U.S. 867,
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114 S. Ct. 189, 126 L. Ed. 2d 148 (1993).
In this case, the picture is clear: the alleged policing
obligation was neither a good nor a service under the DTPA, which
precludes Sherman’s consumer standing under the statute. Therefore
we AFFIRM.
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