Opinion
SA 00-CV-1525 WWJ
October 17, 2002
ORDER
Before the court for consideration is the defendants' motion for summary judgment. Upon careful consideration of the motion, the plaintiffs' response, and the uncontested summary judgment evidence, it is found that defendants' motion should be GRANTED IN PART and DENIED IN PART.
FACTUAL SUMMARY
Plaintiff Deborah Gaeke submitted a credit application to Mazda credit for the purchase of a car. [Gaeke Aff.]. Mazda Credit, also known as defendant Primus, contracted with third party defendant Lason to have credit history documents sorted and imaged onto microfiche. Lason in turn contracted with defendant Manpower, a temporary staffing agency, for individuals to assist the project. [Def. MSJ at 3.] Manpower provided Lason with Teretha Rogers to do temporary work on this project. [Def. Exh. C at 12.] She worked for Lason for three days.Neither Manpower nor Lason nor Primus conducted a background criminal history check on Teretha Rogers. Manpower contends that they would have done a credit history check if Lason had requested one. [Def. Exh. C at 20]. It is alleged that Teretha Rogers stole Deborah Gaeke's credit information while she was working at Lason. [Gaeke Aff.]
SUMMARY JUDGMENT STANDARD
Summary judgment is proper under Rule 56(c) of the Federal Rules of Civil Procedure, "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The substantive law underlying the claims at issue identifies which facts are material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id.
When the moving party bears the burden of persuasion on an issue at trial, the burden is on the moving party to sustain that burden of persuasion as well as demonstrate the absence of a genuine dispute over a material fact. See Celotex, 477 U.S. at 331-32 (Brennan, J., dissenting). When the moving party does not bear the burden of persuasion on an issue at trial, the moving party may discharge his or her summary judgment burden by "showing — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id. at 325.
Once the moving party satisfies its summary judgment burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). When assessing a motion for summary judgment, the court must make all factual inferences in favor of the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, if the evidence presented by the non-moving party is insufficient for a reasonable jury to deliver a verdict in favor of that party, summary judgment should be entered. See Anderson, 477 U.S. at 250-51.
PLAINTIFF'S DECEPTIVE TRADE PRACTICES ACT CLAIM
Plaintiff has not presented sufficient evidence for a claim of a deceptive trade practice. Under Texas law, in order to be protected by the Deceptive Trade Practice Act, the following elements are required: (1) consumers (2) sought or acquired, by purchase or lease (3) goods or services. TEX. BUS. COM. CODE ANN. § 17.45(4) (Vernon Supp. 2002).
Viewing the summary judgment evidence in the light most favorable to the plaintiff, neither the court nor a reasonable jury could conclude that the elements of the DTPA are satisfied. To maintain an action under the Deceptive Trade Practices Act, the plaintiff must be defined as a consumer under § 17.45(4). See Brown v. Bank of Galveston, National Association, 963 S.W.2d 511 (Tex. 1998). The determination of whether a plaintiff is a consumer under the Deceptive Trade Practice Act is a question of law. See Wright v. Gundersen, 956 S.W.2d 43, 47 (Tex.App. — Houston [14th Dist.] 1996, writ ref'd). A consumer is defined as "an individual, partnership, corporation who seeks or acquires by purchase or lease, any goods or services." TEX. BUS. COM. CODE ANN. § 17.45(4) (Vernon Supp. 1980).
The plaintiff cannot satisfy this definition. First, "the key principle in determining consumer status [under this statute] is that the goods or services purchased must be an objective of the transaction, not merely incidental to it." First City Bank v. Keilman, 851 S.W.2d 914, 929 (Tex.App.-Austin 1993, writ denied). In this instance, the car to be purchased is the objective of the transaction while the credit services are incidental. There must be a defect or misrepresentation as to the actual goods or services sought to be purchased. Rutherford v. Whataburger, 601 S.W.2d 441, 444-45 (Tex.Civ.App.-Dallas 1980, writ ref'd n.r.e.). Treble damages are not appropriate when the defect or misrepresentation occurs as to something other than the objective of the transaction. Id.
In Maginn v. Norwest Mortgage, Inc., 919 S.W.2d 164, 166 (Tex.App. — Austin 1996, writ ref'd), the appellate court held that evaluating credit history as part of a loan does not constitute a service under the DTPA. The court held that the credit history check merely facilitated a mortgage loan rather than constituting a service in itself. Thus, the credit service was "not an objective of the transaction." Id. at 167. While this court recognizes that an independant purchase of credit services could allow one to be a consumer under the Deceptive Trade Practices Act, the facts presented here demonstrate that the credit services were ancillary. See Wright, 956 S.W.2d at 47 (explaining that "[i]t is the plaintiff's relationship to the transaction that delineates consumer status").
Therefore, the motion for summary judgment as to the Deceptive Trade Practices Act shall be, and is hereby, GRANTED.
As to the common law negligence and negligent hiring and supervision claims as to both defendant Primus and defendant Manpower, the defendants have not shown an absence of a genuine issue of material fact. A reasonable jury could conclude that both defendants had a duty to keep the plaintiff's credit information secure and that such duty was breached.
In conclusion, plaintiff has set forth specific facts showing that there is a genuine issue for trial. Accordingly, defendant's motion for summary judgment on the negligence claims shall be, and is hereby,