Chastain v. Koonce

700 S.W.2d 579, 29 Tex. Sup. Ct. J. 79, 1985 Tex. LEXIS 1503

• Court: Texas Supreme Court
• Decided: November 27, 1985
• Docket: C-3478
• Status: Published

Opinions

GONZALEZ, Justice,

concurring.

I concur with the result in this cause because the record contains no evidence of unconscionability. However, I disagree with the portion of the court’s opinion that holds that Petitioners had standing to sue under the Deceptive Trade Practices Act.

Only consumers may recover under the DTPA. The act defines “consumer” as an “individual ... who seeks or acquires by purchase or lease, any goods or services.” Tex.Bus. & Comm.Code Ann. § 17.45(4) (Vernon 1982).

The court correctly observes that a plaintiff must satisfy a two-prong test in order to qualify as a consumer under the DTPA: (1) the plaintiff 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. A plaintiff failing to establish either of these two requirements does not have standing under the DTPA, but does have common law remedies available for redress. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 539 (Tex.1981).

Under the DTPA, “ ‘goods’ means tangible chattels or real property purchased or leased for use.” Tex.Bus. & Comm.Code Ann. § 17.45(1) (Vernon 1982). The DTPA does not define “real property”. It is our duty to construe a law as written, and, if possible, to ascertain its intention from the language used therein. Gov’t. Personnel Mut. Ins. Co. v. Wear, 151 Tex. 454, 251 S.W.2d 525, 529 (1952). Real property has been defined as “land, and generally whatever is erected or growing upon or affixed to land. Also, rights issuing out of, and next to, and exercisable within or about land.” Black’s Law Dictionary (5th ed.) at 1096 (1979) (emphasis added). The lots, “goods”, that Petitioners purchased are the land, its fixtures, and all its accompanying exercisable rights.

Petitioners, individually, purchased Lots 4, 5, 6, and 9. This dispute centers around the use of Lot 2.

Petitioners’ deeds contain restrictive covenants which limit the use of their property to residential purposes. None of Petitioners’ deeds contain restrictive covenants limiting the use of Lot 2 or the surrounding property.

Petitioners are unable to show any vested or exercisable right in Lot 2. Regardless, they assert a violation of the DTPA as a result of the use or “misuse” of Lot 2. Petitioners have therefore failed to bring themselves within the second prong of the Cameron test — that the goods or services purchased or leased must form the basis of a DTPA complaint.

The DTPA was designed to discourage deception and unconscionable conduct. I wholeheartedly agree with its purpose. The Act has given consumers a much needed remedy. See Kish v. Van Note, 692 5.W.2d 463 (Tex.1985). But expansion of the Act beyond the intent of the Legislature exceeds our judicial function and creates confusion.¹ Unfortunately, the byproduct may be a legislative reaction against consumer protection.

For the above reasons, I only concur with the result in this cause.

1 . Another example of how we have created confusion and expanded the Act beyond that intended by the Legislature is our recent opinion of Weitzel v. Barnes, 691 S.W.2d 598 (Tex. 1985). In Weitzel, the court allowed a DTPA recovery without evidence that the deceptive act was a producing cause of the consumer’s damages.