Michael Hutton, Individually and for the Benefit of Certain Customers of Michael Hutton Jewelry Design v. National Guardian Security Services Corp.
This text of Michael Hutton, Individually and for the Benefit of Certain Customers of Michael Hutton Jewelry Design v. National Guardian Security Services Corp. (Michael Hutton, Individually and for the Benefit of Certain Customers of Michael Hutton Jewelry Design v. National Guardian Security Services Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Michael Hutton appeals from a summary judgment that he take nothing by his two causes of action against National Guardian Security Services Corporation. We will affirm the trial-court judgment.
Under a contact between them, Greater Austin Security Central, Inc. ("GASC")
installed a security system in Hutton's jewelry-repair shop. (1)
About two years afterwards, GASC
sold all its assets to National Guardian. (2) Burglars subsequently stole from the shop certain jewelry
that had been left there for repair. Based on allegations that the security system failed, causing
his customers' losses, Hutton sued as their bailee or agent alleging against National Guardian his
customers' causes of action for common-law negligence and their statutory causes of action for
deceptive trade practice. See Deceptive Trade Practices--Consumer Protection Act ("DTPA"),
Tex. Bus. & Com. Code § 1750 (West 1987 & Supp. 1995); Waggoner v. Snody, 85 S.W. 1134,
1135 (Tex. 1905) (bailee may sue third party for damage or destruction of chattel and recover its
full value as bailor's agent). On summary judgment, the trial court ordered that Hutton recover nothing by his
causes of action. Hutton appeals on two points of error. The facts are undisputed in all material
respects. We will draw from them all reasonable inferences that favor Hutton's claims. See
Nixon v. Mr. Property Management Co., 690 S.W.2d 545, 548-49 (Tex. 1985). Under Hutton's first point of error, the parties dispute whether the summary
judgment record shows as a matter of law that Hutton's customers were "consumers." The status
of "consumer" is, of course, essential for a plaintiff to maintain a statutory cause of action for
deceptive-trade practice. See DTPA § 17.50(a). For purposes of the DTPA, a "consumer" means
"an individual . . . who seeks or acquires by purchase or lease, any goods or services." DTPA
§ 17.45(4) (emphasis added). It is not necessary that the plaintiff be a party to the transaction in
which the goods or services were "acquired." Whether the plaintiff "acquired" the goods and
services depends upon the plaintiff's "relationship to a transaction" rather than his or her
relationship with the defendant. See Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 353
(Tex. 1987). When the plaintiff is not a party to the contract under which goods or services are
acquired, he is nevertheless a "consumer" for purposes of the DTPA if his relationship to the
transaction is that of an intended beneficiary; that is to say, if the contracting parties intended that
he have the use or benefit of the goods or services acquired under the contract by the purchaser
or lessee. See, e.g., Birchfield v. Texarkana Memorial Hosp., 747 S.W.2d 361 (Tex. 1987)
(newborn infant "acquired" benefit of medical supplies and services furnished by hospital under
contract with infant's parents); Kennedy v. Sale, 689 S.W.2d 890, 892 (Tex. 1985) (employee
"acquired" benefit of group-insurance policy purchased by employer for his employees); D/FW
Commercial Roofing Co. v. Mehra, 854 S.W.2d 182 (Tex. App.--Dallas 1993, no writ) (tenant
"acquired" benefit of roof-repair services furnished by roofer under contract with landlord when
roof torn from tenant's leased building); Allied Towing Serv. v. Mitchell, 833 S.W.2d 577 (Tex.
App.--Dallas 1992, no writ) (pool-hall patron held to have "acquired" use of automobile-parking
privilege leased from property owner by pool-hall operator for customer parking); HOW Ins. Co.
v. Patriot Fin. Serv., Inc., 786 S.W.2d 533 (Tex. App.--Austin 1990, writ denied) (purchaser of
condominium unit "acquired" benefit of homeowner's warranty and insurance purchased by seller
from developer); Parker v. Carnahan, 732 S.W.2d 151 (Tex. App.--Texarkana, writ denied)
(former wife "acquired" benefit of legal and accounting services purchased by her husband from
accountant and lawyers); see also Wellborn v. Sears, Roebuck & Co., 970 F.2d 1420 (5th Cir.
1992) (teenage son "acquired" use of automatic garage-door opener purchased by his mother from
defendant). On the other hand, a stranger to the contract cannot be a "consumer" for purposes
of the DTPA, even though he may be an incidental beneficiary, when the circumstances do not
justify a conclusion that the contracting parties intended that he have the use and benefit of the
goods or services acquired. See Kitchener v. T.C. Trailers, Inc., 715 F. Supp. 798 (S.D. Tex.
1988) (borrower of horse trailer did not "acquire" it in owner's purchase from manufacturer); see,
e.g., Brandon v. American Sterilizer Co., 880 S.W.2d 488, 492 (Tex. App.--Austin 1994, no writ)
(employee using equipment containing toxic chemicals did not "acquire" its use by reason of
employer's purchase of the equipment from manufacturer); Lara v. Lile, 828 S.W.2d 536 (Tex.
App.--Corpus Christi 1992, writ denied) (contractor's employee did not "acquire" transportation
services supplied by subcontractor, even though employee was incidental beneficiary of
subcontractor's implied duty to operate its truck safely); Rodriguez v. Ed Hicks Imports, 767
S.W.2d 187 (Tex. App.--Corpus Christi 1989, no writ) (automobile passenger did not "acquire"
its use or benefit in dealer's sale to driver). The transaction of purchase or lease is evidenced by the contract between Hutton
and GASC. It contradicts expressly and directly any imputation that the sale or lease of the
security system was intended for the use or benefit of anyone but the parties. The presumption
is that parties contract for themselves alone. Nothing in the summary judgment record contradicts
that presumption; the contract is consistent with it. We overrule Hutton's first point of error.
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