Opinion
No. 05-04-01803-CV
Opinion Filed July 26, 2005.
On Appeal from the County Court at Law No. 4, Dallas County, Texas, Trial Court Cause No. cc-03-1445-d.
Affirmed.
Before Justices O'NEILL, RICHTER, and FRANCIS.
MEMORANDUM OPINION
In this case involving breach of a settlement agreement, Lisa and James Kincaid appeal the trial court's summary judgment in favor of Cummins Engine Company. In two issues, the Kincaids argue the trial court erred in granting summary judgment on their claim under the Texas Deceptive Trade Practices Act. We affirm.
The Kincaids purchased a Kenworth truck with a Cummins engine. After months of problems, the Kincaids filed suit against Cummins under the "lemon" laws. The parties entered a settlement agreement in which the Kincaids received $10,070 and a promise from Cummins to "cover the costs of parts and labor only associated with any factory defect injector failure." The Kincaids signed a release. This case involves the Kincaids' suit alleging breach of the settlement agreement. Among other things, the Kincaids sued under the DTPA, alleging they were presented a settlement agreement/release from Cummins's agent, who misrepresented terms of the agreement to induce the Kincaids into signing the agreement. In particular, the Kincaids asserted that Cummins promised the release only covered problems prior to the date of the release when, in fact, it covered problems that arose afterward. The Kincaids alleged that Cummins's conduct was unconscionable.
Cummins moved for summary judgment and asserted, among other things, that the Kincaids did not have standing under the DTPA because negotiating the settlement agreement was not a consumer transaction and the Kincaids were not consumers. We agree.
Only consumers can complain of unconscionable acts under the DTPA. See Riverside Nat'l Bank v. Lewis, 603 S.W.2d 169, 173 (Tex. 1980). Ordinarily, the question of whether a party is a consumer under the DTPA is one of law to be determined by the trial court. FDIC v. FA Equip. Leasing, 854 S.W.2d 681, 690 (Tex.App.-Dallas 1993, no writ) (op. on mot. for reh'g on remand). To qualify as a consumer, two requirements must be established: (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. Id.
Here, Cummins relied on the deposition testimony of Lisa Kincaid to establish that the Kincaids were not consumers. Lisa testified that she negotiated with Cummins's agent, Joe Boswell, to settle the original lawsuit; when discussing the settlement with Boswell, she was not trying to purchase any goods or services from him; and the only purpose of the settlement discussions with Boswell was to resolve her complaints regarding the truck's engine.
We conclude the above evidence is sufficient to establish, as a matter of law, that the Kincaids were not "consumers" as contemplated by the DTPA in negotiating and settling their lawsuit. While we agree with the Kincaids that the settlement agreement did contain repair services, the agreement itself was not a good or service nor were the Kincaids looking to purchase goods or services when settling the claim. We resolve the first issue against the Kincaids. Our resolution of this issue makes it unnecessary to address the second issue.
We affirm the trial court's judgment.