                                  MEMORANDUM OPINION
                                         No. 04-11-00016-CV

                                          DODEKA, L.L.C.,
                                             Appellant

                                                   v.

                                            Maria GARCIA,
                                               Appellee

                     From the 38th Judicial District Court, Uvalde County, Texas
                                 Trial Court No. 09-09-27,250-CV
                         Honorable Mickey R. Pennington, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Catherine Stone, Chief Justice
                  Phylis J. Speedlin, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: October 12, 2011

REVERSED AND RENDERED

           Dodeka, L.L.C. appeals the trial court’s judgment rendered in favor of Maria Garcia in

her action against Dodeka under the Deceptive Trade Practices Act (“DTPA”). See TEX. BUS. &

COM. CODE ANN. § 17.45(4) (West 2011). Because we conclude that Garcia does not qualify as

a consumer under the statute, we reverse and render a take-nothing judgment in favor of Dodeka.
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                           FACTUAL AND PROCEDURAL BACKGROUND

       This case stems from two earlier lawsuits and efforts by Dodeka to collect a credit card

debt from the wrong person. Several undisputed findings of fact by the trial court help clarify

the underlying basis of the instant suit:

           •   On January 29, 2009, [Dodeka] sued [Garcia] on the debt in Justice Court
               of Uvalde County, Texas . . . ;
           •   [Garcia] had to retain the services of an attorney to answer the lawsuit and
               respond to the discovery requests;
           •   During this discovery it was established that the debt in question had been
               incurred by a person with a social security number that did not match the
               social security number of [Garcia] and that [Garcia] did not owe the debt;
           •   On May 22, 2009, [Dodeka] nonsuited its lawsuit against [Garcia];
           •   On June 22, 2009, an attorney representing [Dodeka] wrote a letter to
               [Garcia] demanding payment for the same debt;
           •   On July 17, 2009, [Garcia] through her attorney responded to [Dodeka]
               stating that [Garcia] did not owe the debt and that they should stop
               harassing her;
           •   On September 1, 2009 [Dodeka] sued [Garcia] again in the Justice Court
               of Uvalde County, Texas . . . ;
           •   [Garcia] was required to retain the services of an attorney to respond to
               this lawsuit and answer the discovery requests; and
           •   When the lawsuit of September 1, 2009 was called for trial [Dodeka]
               never bothered to appear and the case was dismissed.



       Garcia subsequently sued Dodeka, claiming Dodeka committed a false, misleading, or

deceptive act or practice when it “[m]isrepresented the authority of its attorney by dismissing the

first lawsuit and filing another lawsuit against [Garcia].” See TEX. BUS. & COM. CODE ANN. §

17.50(a) (West 2011). Garcia further alleged she was entitled to recovery under the DTPA “tie-

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in” statute for violations of the Texas Debt Collection Act and the federal Fair Debt Collection

Practices Act. See id. § 17.50(h) (West 2011). In a bench trial, Garcia testified that she never

borrowed or attempted to borrow money from Dodeka and was confused by Dodeka’s demand

letters and suits for a debt she did not owe. Garcia further testified she developed anxiety and

nervousness as a result of Dodeka’s attempt to collect the debt. Garcia’s daughter testified that

Garcia worried about the collection efforts and that Dodeka’s action had damaged her mother’s

credit. At the conclusion of the evidence, Dodeka moved for a directed verdict on the basis that

Garcia did not establish her status as a consumer. The trial court denied Dodeka’s motion and

concluded that Garcia was a consumer. The court further concluded that Dodeka knowingly

violated the DTPA by attempting to collect a debt it knew Garcia did not owe, and that Dodeka

had also violated the Texas Debt Collection Act and the Federal Fair Debt Collection Practices

Act. Garcia was awarded $15,000 in actual and/or economic damages and $15,000 in attorney’s

fees. This appeal followed.

                                     STANDARD OF REVIEW

       The DTPA protects a consumer from false, misleading, or deceptive acts or practices,

from an unconscionable action or course of action by any person, and from the breach of an

implied or express warranty in the conduct of any trade or commerce that is the producing cause

of actual damage. Id. §§ 17.46(a), 17.50(a)(1), (2), (3) (West 2011).         Within the DTPA,

“consumer” is defined as “an individual, partnership, [or] corporation . . . who seeks or acquires

by purchase or lease, any goods or services.” Id. § 17.45(4). Determining consumer status is

generally a question of law for the court to decide. Bohls v. Oakes, 75 S.W.3d 473, 479 (Tex.

App.—San Antonio 2002, pet. denied). We review de novo the trial court’s determination that

Garcia was a consumer under the DTPA. Id.



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                                           ANALYSIS

       In order to qualify as a consumer and thus have standing to sue under the DTPA, a

plaintiff must show that (1) she sought or acquired goods or services by purchase or lease, and

(2) that the goods or services purchased or leased form the basis of her suit. Amstadt v. U.S.

Brass Corp., 919 S.W.2d 644, 650 (Tex. 1996). The person need not have actually acquired the

services or goods—merely seeking to acquire services or goods is sufficient to establish

consumer status; money does not need to change hands. Bohls, 75 S.W.3d at 479. Moreover,

the plaintiff need not herself be the one who purchases or leases the goods or services to be a

consumer. Kennedy v. Sale, 689 S.W.2d 890, 892–93 (Tex. 1985). Rather, a plaintiff establishes

consumer standing by her relationship to the transaction, not by contractual relationship to the

defendant. Id. Thus, privity between a plaintiff and defendant is not a dispositive factor in

evaluating the plaintiff’s consumer status under the DTPA.        Amstadt, 919 S.W.2d at 649.

Nevertheless, seeking or acquiring some good or service must be at the core of the plaintiff’s and

defendant’s relationship. Kennedy, 689 S.W.2d at 892–93.

       Dodeka argues that Garcia was not a consumer under the DTPA and asserts that Garcia

did not “seek or acquire” anything from Dodeka. Garcia responds that she was a consumer

because she was a credit card customer, which is the type of debt Dodeka attempted to collect

from her. We agree with Dodeka. The facts are undisputed that Garcia never purchased, sought,

leased, or acquired anything from Dodeka. In fact, the basis of Garcia’s entire defense in the two

underlying debt collection lawsuits is that she had no relationship to Dodeka. Accordingly,

Garcia was not a consumer and cannot recover under the DTPA. See Lukasik v. San Antonio

Blue Haven Pools, Inc., 21 S.W.3d 394, 401 (Tex. App.—San Antonio 2000, no pet.).




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         A plaintiff may also bring a cause of action under the DTPA if granted that right by

another law. TEX. BUS. & COM. CODE ANN. § 17.50(h). Here, Garcia pleaded that she was

entitled to recover under the DTPA for Dodeka’s violations of the Texas Finance Code 1 and the

federal Fair Debt Collection Practices Act. 2 However, the DTPA “tie-in” statute does not

exempt a plaintiff from proving consumer status. Id.; Hansberger v. EMC Mortg. Corp., No. 04-

08-00438-CV, 2009 WL 2264996, at *2 (Tex. App.—San Antonio July 29, 2009, pet. denied)

(mem. op.) (holding that a plaintiff who pleaded causes of action under the DTPA for six “tie-in”

statute violations, including Texas Finance Code chapter 392, did not satisfy the DTPA

consumer status requirement and was therefore not entitled to judgment as a matter of law);

Mendoza v. Am. Nat’l Ins. Co., 932 S.W.2d 605, 608 (Tex. App.—San Antonio 1996, no writ).

Accordingly, Garcia’s causes of action under the DTPA “tie-in” provision necessarily fail

because she did not establish her consumer status under the DTPA.

                                                  CONCLUSION

         Because the issue of consumer status under the DTPA is dispositive, we need not address

Dodeka’s remaining issues. For the reasons stated above, we reverse the trial court’s judgment

and render a take-nothing judgment in favor of Dodeka.


                                                          Phylis J. Speedlin, Justice




1
 Texas Finance Code chapter 392 states, in relevant part, “[a] violation of this chapter is a deceptive trade practice
under [the DTPA], and is actionable under [the DTPA].” TEX. FIN. CODE ANN. § 392.404(a) (West 2006).
2
  We find nothing in the Fair Debt Collection Practices Act that specifically grants a plaintiff the right to bring a
cause of action under a state’s deceptive trade practices laws, and Garcia does not cite us to any such authority. See
15 U.S.C. §§ 1692–1692p.

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